FTC Extends Deadline to Comment on 10-Year Update to Green Guides

The Federal Trade Commission (FTC) is seeking public comment on its Guides for the Use of Environmental Marketing Claims (“Green Guides” or “Guides”) as part of a 10-year review process. The FTC extended the public comment period, originally set to expire on February 21, 2023, to April 24, 2023.

The FTC requests input on the continuing need for the Guides, their economic impact, and their effect on the accuracy of environmental claims. The FTC also seeks information on consumer perception of environmental claims, including those environmental claims not currently addressed in the Guides.

The FTC also invites comments on specific issues, including:

1. whether the revised Guides should provide additional information related to Carbon Offsets and Climate Change claims and issues;
2. whether the FTC should change the current threshold for when marketers can make unqualified Recyclable claims and whether the Guides should address in more detail claims for products that are collected by curbside recycling programs but not ultimately recycled;
3. whether unqualified claims about Recycled Content are widely understood by consumers and whether alternative substantiation methods may be appropriate; and
4. the Need for Additional Guidance regarding green claims, sustainability claims, and energy use and efficiency claims.

Of particular note, the FTC is also considering establishing “independently enforceable requirements related to unfair and deceptive environmental claims” by issuing a rulemaking under the FTC Act. Many states already incorporate the Green Guides into their laws, but the Guides themselves are not binding.

The Green Guides are FTC’s interpretation of Section 5 of the FTC Act (15 U.S.C. § 45(a)) regarding environmental advertising and labeling claims. The Guides, which are not themselves currently enforceable, also discuss how consumers are likely to interpret claims and how businesses can substantiate their environmental claims. First issued in 1992, the Green Guides have been periodically revised; they were last revised in 2012.

During the 2012 revision, the FTC received more than 5,000 total comments. Given the increasing salience of environmental issues and green marketing, the current review will likely invite substantial interest from various stakeholders.

Thus far, comments submitted during the current review period reflect broad support for the Guides and recognition of their ever-growing importance as consumers become more focused on sustainability, though very few submissions respond to FTC’s consideration of establishing enforceable requirements. Comments from industry groups reflect support for more robust federal standards to address the emerging patchwork of state-by-state legislation of green marketing and promote consistency.

To date, many comments have focused on the evolving carbon market and offset claims and note that the Green Guides should be revised to reflect the growth of the voluntary carbon market. Consumer groups also comment that the Green Guides should include competitive energy-supply marketing claims made to sell consumers alternative energy provided through the energy grid.

Comments from environmental groups tend to call for more specificity in terminology, especially around recycled-content claims, prohibitions on terms that marketers are unlikely to achieve, such as “100% recyclable” and “net-zero,” and certification requirements for bio-based, biodegradable, and compostable claims, while public works entities seek specificity and proper labeling so waste is diverted to the proper stream to prevent contamination of recyclable and compostable waste. Industry groups also encourage a revised version of “recyclable” that focuses on product features rather than a percentage availability of recycling.

The revisions to the Guides, as well as the potential for rulemaking under the FTC Act, may have major implications for businesses and their marketing practices. Morrison Foerster’s Environmental team has diverse and extensive experience counseling clients across industries in matters arising out of FTC regulation and anticipated changes to the Green Guides. We are here to assist clients interested in engaging in the current public comment process and to provide compliance advice going forward. With attorneys practicing nationwide, Morrison Foerster’s Environmental team navigates a wide array regulatory hurdles and represents clients facing complicated and emerging environmental regulatory issues.