Upcoming Changes Further Limit Environmental Claims
Last fall, the Federal Trade Commission (FTC) proposed revisions to its “Guides for the Use of Environmental Marketing Claims,” commonly known as the “Green Guides,” first published in 1992. The agency published these proposed changes to address emerging environmental claims. The FTC has not announced a final publication date, but prudent companies will already be reflecting the FTC’s views in their labeling and advertising.
Formal changes in the guides are not a prerequisite for FTC enforcement action—the Green Guides indicate how the FTC intends to exercise its enforcement discretion. Indeed, even before this proposal was published, the FTC had taken action against allegedly falsely labeled degradable paper products and bamboo products made with an eco-friendly manufacturing process.
These guides are broad in scope; they apply to all environmental claims about packaging, products and services, whether they are embodied in labeling or advertising.
The proposed revision to the Green Guides emphasizes that environmental claims may be direct or implied. Implied claims may include the use of symbols or codes, (for example, the three-chasing-arrows symbol or an SPI code). Context is key in determining whether there is an environmental claim.
The proposal also emphasizes the need for qualification and substantiation of claims. Where necessary to prevent deception, all claims must be qualified. This includes identifying whether a claim applies to packaging, a product or a service and clearly identifying the basis of comparison in any comparative claims. Manufacturers and other marketers should also be sure not to overstate any environmental benefit.
Here is what the revised guides say about environmental claims:
General Environmental Claims. Unqualified general environmental claims such as “eco-friendly,” “environmentally friendly” and “green” cannot usually be substantiated. Therefore, such claims usually should include clear and prominent qualifying language.
Carbon Offsets. Unqualified carbon offset claims should refer to emission reductions that have already occurred or will occur in the immediate future. Any claim for an emission reduction that will not occur for two years or longer should be explicitly qualified. Further, claims are not permissible for emission reductions or activities resulting in reductions that are required by law.
Certifications and Seals of Approval. Unqualified certifications or seals of approval cannot usually be substantiated. Such claims should clearly state that the certification or seal applies to specific benefits. Use of a third-party certifier’s name, logo or seal of approval is an endorsement that must comply with the FTC’s Endorsement Guides.
Compostable Claims. Unqualified compostable claims should only be used on a product that breaks down into, or otherwise become part of, usable compost in a safe manner in approximately the same time as the materials with which it is composted. Such claims should be qualified if composting facilities are required and not available to a substantial majority of consumers where the product or service is sold. (The FTC informally considers a substantial majority to be 60%.)
Degradable Claims. Unqualified degradable claims should only be made where the entire item will completely break down and return to nature within one year after customary disposal. Unqualified claims should not be used for items usually disposed of in landfills, incinerators and recycling facilities since decomposition could not occur at these places in one year.
Free-of and Non-Toxic Claims. Free-of or non-toxic claims may be deceptive where the product, package or service contains or uses substances that pose the same or similar environmental concerns as the removed substance or where the removed substance is not one associated with the product category.
Ozone-Safe and Ozone-Friendly Claims. Unqualified ozone-safe and ozone-friendly claims should not be used where packaging or a product or service contains or uses any ozone-depleting substance or volatile organic compounds.
Recyclable Claims. Unqualified recyclable claims should only be made where a product or package can be collected, separated or otherwise recovered from the solid-waste stream through an established recycling program for reuse or use in manufacturing or making another item. In addition, the availability of recycling programs and collection sites must be clearly identified to the consumer.
Recycled Content Claims. Unqualified recycled content claims are permissible where the product is composed of material that has been recovered or otherwise diverted from the solid-waste stream during the manufacturing process or after consumer use. Products containing used, reconditioned or remanufactured components should clearly qualify recycled-content claims to the extent necessary to avoid deception.
Refillable Claims. Unqualified refillable claims are not permissible unless the marketer provides the means for refilling the package through a system of collection and refill or by offering for sale products that can be used to refill the original container.
Renewable Energy Claims. Unqualified renewable energy claims cannot be used where power derived from fossil fuel is used to manufacture any part of the product or service. Renewable energy claims are not permissible where the manufacturer generates renewable energy but sells renewable energy certificates for all of that electricity.
Renewable Materials Claims. Where necessary, renewable materials claims should be qualified by specifying the material used, how the material is sourced and why the material is renewable.
Source Reduction Claims. Source reduction claims—that a product or package has a reduced weight, volume or toxicity—should be qualified where necessary to avoid deception about the amount of reduction and the basis of the comparison.
J. Elizabeth Poole is a lawyer in the Environment & Safety Practice at Wiley Rein LLP in Washington, DC. Ms. Poole counsels clients on a broad range of health and safety related regulatory matters with a focus on compliance with laws implemented by the U.S. Environmental Protection Agency, U.S. Food and Drug Administration, U.S. Consumer Product Safety Commission and state laws and regulations. Ms. Poole can be reached at 202.719.7246 or firstname.lastname@example.org.
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