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

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.