FTC Seeks Public Comment on Potential Updates to the Green Guides, Will Begin 60-Day Comment Period in January 2023

The Federal Trade Commission (FTC) announced on December 14, 2022, that it is seeking public comment on potential updates and changes to the Guides for the Use of Environmental Marketing Claims (Green Guides). FTC intends the Green Guides to help marketers avoid making environmental marketing claims that are unfair or deceptive under Section 5 of the FTC Act. FTC states that it seeks to update the Green Guides “based on increasing consumer interest in buying environmentally friendly products.” FTC has posted a pre-publication version of the Federal Register notice. Publication of the notice in the Federal Register, which is expected in mid-January 2023, will begin a 60-day comment period.

As reported in our October 3, 2012, memorandum, the Green Guides were last revised in 2012. They provide guidance on environmental marketing claims, including how consumers are likely to interpret particular claims and how marketers can substantiate these claims to avoid deceiving consumers.

FTC has asked questions to elicit comments on general issues related to the Green Guides, including the continuing need for the Green Guides, their economic impact, their effect on the accuracy of various environmental claims, and their interaction with other environmental marketing regulations. FTC also seeks consumer survey evidence and consumer perception data regarding environmental claims, including those not in the Green Guides currently.

FTC states that it expects “many public comments” on the following specific issues:

• Carbon Offsets and Climate Change: The current Green Guides provide guidance on carbon offset and renewable energy claims. FTC invites comments on whether the revised Green Guides should provide additional information on related claims and issues;
   
• The Term “Recyclable”: Among other things, FTC seeks comments on whether it should change the current threshold that guides marketers on when they can make unqualified recyclable claims, as well as whether the Green Guides should address in more detail claims for products that are collected (picked up curbside) by recycling programs but not ultimately recycled;
   
• The Term “Recycled Content”: FTC requests comments on whether unqualified claims about recycled content — particularly claims related to “pre-consumer” and “post industrial” content — are widely understood by consumers, as well as whether alternative methods of substantiating recycled content claims may be appropriate; and
   
• The Need for Additional Guidance: FTC also seeks comment on the need for additional guidance regarding claims such as “compostable,” “degradable,” ozone-friendly,” “organic,” and “sustainable,” as well as those regarding energy use and energy efficiency.
   

FTC provides on its website a list of recent cases relating to topics covered by the Green Guides. Memoranda on a number of these cases are available on our website.

Commentary

Given the commercial imperative to be “green” and “sustainable” and a member of the “circularity” crowd, the Green Guides are arguably more important now than they were when first issued. They provide important guidance to companies by setting forth factors and/or criteria to be satisfied to be considered a truthful, substantiated claim for otherwise potentially amorphous claims such as “recyclable.” The Green Guides were last updated a decade ago, and in that time, there have been scientific, regulatory, and consumer perception developments. It is a positive step that FTC is seeking comments and intends to reflect these new developments in updated Green Guides to assist companies in making an increasing number and variety of “environmentally friendly” claims.

When the Green Guides were last updated in 2012, FTC relied heavily upon submitted comments in determining marketing perceptions and whether and how it could provide guidance for both general and specific environmental claims. FTC determined at that time that there was insufficient information or evidence to provide guidance for several claims, including sustainable, organic, and natural. Claims related to “energy use” and “energy efficiency” were not specific terms for which FTC sought comments in 2022. FTC’s ability to update the Green Guides effectively will hinge on stakeholders providing well-reasoned and well-supported comments.