FTC Requests Public Comment on Potential Updates to “Green Guides” for the Use of Environmental Marketing Claims

On December 14, 2022, the Federal Trade Commission (FTC) announced that it is seeking public comment on a variety of potential updates to its “Green Guides.”¹ First issued in 1992, the FTC’s Green Guides provide direction and guidance to product marketers and manufacturers, helping them ensure that environmental marketing claims associated with their products comply with the FTC Act. While non-binding, the Green Guides serve as a guidepost for the FTC’s approach to enforcement, and courts reference them more and more in evaluating challenged environmental marketing claims. Given the increasing consumer interest in sustainable, environmentally friendly products, as well as the uptick in FTC enforcement actions and private consumer lawsuits alleging unfair or deceptive environmental marketing claims, it is imperative that product marketers and manufactures remain apprised of potential changes to the Green Guides.

The Green Guides provide a wide range of guidance on environmental marketing claims, including, for example, how consumers are likely to interpret particular claims and how marketers and manufacturers can qualify their environmental claims to avoid potential consumer deception.² In the near future, the FTC intends to update the Guides for the first time since 2012 for the stated purpose of providing “current, accurate information about consumer perception of environmental benefit claims . . . [in order to] help marketers make truthful claims and consumers find the products they seek.”³

Accordingly, in its request for public comment, the FTC specifically seeks remarks relating to the following topics:

• The continuing need for the Green Guides
• The economic impact of the Green Guides
• The interaction of the Green Guides with other environmental regulations
• Evidence detailing consumer perception of environmental claims⁴

In addition, the FTC expects a range of commentary addressing carbon offset and climate change concerns, along with comments on the terms “recyclable,” “pre-consumer,” “postindustrial,” “compostable,” “degradable,” “ozone-friendly,” “organic,” “sustainable,” and “energy efficient.”⁵

Consumer product marketers and manufacturers should keep their knowledge of Green Guides’ standards current. Courts and class action litigants frequently rely on these standards when handling so-called “greenwashing” suits­, i.e., lawsuits alleging that a manufacturer’s environmental marketing claims are false or deceptive.⁶ For example, in Duchimaza v. Niagara Bottling, LLC,⁷ the court relied on the Green Guides to interpret the term “recyclable” as used in a water bottle manufacturer’s marketing materials.⁸ Similarly, in In re S.C. Johnson & Son, Inc. Windex Non-Toxic Litigation,⁹ the court and the parties relied heavily on the Green Guides’ discussion of claims that a product is “non-toxic,” ultimately denying the Defendant-manufacturer’s motion to dismiss.¹⁰

Considering courts’ willingness to refer to and rely on the standards in the Green Guides, it behooves product marketers and manufacturers to remain vigilant about their marketing activity and up-to-date with any forthcoming alterations to the Green Guides. The request for comment also provides interested stakeholders with an opportunity to provide input by commenting, either directly or through a trade association. This vigilance is especially crucial given the continued rise in “conscious consumerism,” which refers to the consumer practice of primarily purchasing goods that have positive social, economic, and environmental impacts. Moreover, the FTC itself has made it a priority to crack down on false or deceptive environmental marketing claims, initiating a number of recent enforcement actions relating to topics covered by the Green Guides.¹¹ As such, if not already done, product manufacturers and marketers should review all environmental claims on labeling and marketing materials with the Green Guides in mind, in order to reduce the threat of inquiry by the FTC or consumer litigation.

Interested parties may submit commentary on the FTC’s potential updates to the Green Guides either online or by mail. Commenters should make reference to the following identifier in their comment: “Green Guides Review (16 CFR part 260) (Matter No. P954591).”¹² Public comments must be submitted on or before February 21, 2023.¹³ The FTC may also host public workshops to gather additional input.