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August 5, 2022

FTC Intends to Initiate Review of, and Seek Comment on, Green Guides in 2022

Bergeson & Campbell, P.C.

On August 5, 2022, the Federal Trade Commission (FTC) announced its modified ten-year regulatory review schedule. 87 Fed. Reg. 47947. FTC reviews its rules and industry guides on a ten-year schedule to ensure they remain relevant and not unduly burdensome. FTC publishes its review schedule each year, with adjustments made in response to public input, changes in the marketplace, and resource demands. FTC, in its discretion, may modify or reorder the schedule in the future to incorporate new rules or to respond to external factors (such as changes in the law) or other considerations.

According to the review schedule, FTC intends to initiate its review of, and seek public comment on, the Guides for the Use of Environmental Marketing Claims (Green Guides) in 2022. As reported in our October 3, 2012, memorandum, FTC last revised the Green Guides in 2012. FTC intends the Green Guides to help marketers ensure that the claims they make about the environmental attributes of their products are “truthful and non-deceptive.” The 2012 revision included modified sections on general environmental benefit, compostable, degradable, ozone, recyclable, and recycled content. FTC added new sections concerning carbon offsets, certifications and seals of approval, free-of claims, non-toxic claims, made with renewable energy claims, and made with renewable materials claims. While the Green Guides are administrative interpretations of law, and are not independently enforceable, they describe the types of environmental claims FTC may find deceptive under Section 5 of the FTC Act. Under Section 5, FTC can take enforcement action against deceptive claims, which could lead to FTC orders prohibiting deceptive advertising and marketing and fines if those orders are later violated.

When the Commission reviews a rule or guide, it publishes a Federal Register notice seeking public comment on the continuing need for the rule or guide, as well as the rule’s or guide’s costs and benefits to consumers and businesses. Based on this feedback, FTC may modify or repeal the rule or guide to address public concerns or changed conditions, or to reduce undue regulatory burden.