Wait for the "Green" Light Before Making Environmentally Friendly Claims

20 November 2014 Manufacturing Industry Advisor Blog

Consumers increasingly pay a premium for environmentally friendly products. As a result, companies are expanding their green marketing claims regarding products and packaging. Those companies may find themselves under scrutiny from the regulatory body overseeing environmental claims related to products, the Federal Trade Commission (“FTC”). The FTC has become more aggressive in enforcing its green regulations. To avoid becoming the target of an FTC enforcement action, manufacturers should look to the “Green Guides,” which provide guidelines for environmental marketing claims.

FTC Enforcement

In October 2013, the FTC instituted six enforcement actions for allegedly false and misleading environmental claims. These actions prove that companies should think twice before making aggressive green marketing claims. Five of the six actions involve biodegradable plastic claims. Essentially, the FTC argues that none of the companies had reliable scientific evidence to substantiate their claims. The five actions related to biodegradable plastic claims resulted in favorable outcomes for the FTC, while the sixth action is still pending. Moreover, in 2014, the FTC has settled, in its favor, two enforcement actions for false and misleading claims related to plastic lumber and diapers, respectively.

The Green Guides

Fortunately for manufacturers, the FTC has provided guidance, the Green Guides, for companies when making environmental claims. The Green Guides require green marketing claims to be substantiated, truthful, and non-deceptive. They outline the types of green marketing claims that are considered deceptive or misleading by the FTC. Ultimately, scientific evidence (vetted prior to marketing) should substantiate green claims made about a product or its packaging.

In addition to such broad guidance, the Green Guides provide explicit direction for certain claims. For example, The Green Guides also provide specific guidelines for claims that a product or its packaging is: compostable, degradable, “free of” a substance, non-toxic, ozone-friendly, recyclable, refillable, made of a recycled content, made with renewable energy, or made with renewable materials. The Green Guides also warn against making broad, unqualified environmental claims like “green” or “eco-friendly” because they are difficult to substantiate. And the Green Guides regulate the use of green certifications or seals of approval.

Importantly, qualifications of certain claims are often required. For example, a product that is only compostable in an industrial composter must have an appropriate qualifier to be labeled “compostable.” Accordingly, manufacturers would be wise to examine the Green Guides before finalizing environmental claims for marketing.

“Green” Doesn’t Necessarily Mean Go

These enforcement actions serve as an important reminder that the FTC is serious about enforcing its Green Guide regulations. For more information regarding the FTC enforcement actions or the Green Guides, check out “Is It Easy Being ‘Green’? The FTC Pursues Enforcement Actions Regulating “Green” Marketing Claims” by Catherine Basic, Richard Casper, Michael Flanagan, Gregory Neppel and Sarah Slack.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Related Services

Insights

Cryptocurrency in China is like BIG BROTHER in 1984!
20 October 2019
Internet, IT & e-Discovery Blog
California Governor Signs New Telehealth Insurance Law
18 October 2019
Health Care Law Today
Continued Increase in E-Commerce and Online Ordering Changes Landscape of Urban Transportation
17 October 2019
Dashboard Insights
CMS Proposes Revisions to Stark Law
16 October 2019
Health Care Law Today
PATH Summit 2019
18-20 December 2019
Arlington, VA
MedTech Impact Expo & Conference
13-15 December 2019
Las Vegas, NV
Review of 2020 Medicare Changes for Telehealth
11 December 2019
Member Call
BRG Healthcare Leadership Conference
06 December 2019
Washington, D.C.