Is Your Product Really “Green”? Marketing Environmentally Friendly Products under the FTC “Green Guides”
Retailers that market their products as environmentally friendly or “green” should take note of the latest updates to the Federal Trade Commission’s Green Guides. The Green Guides are intended to protect consumers from misleading claims in advertisements, labeling, promotional materials and all other forms of marketing. Marketers are expected to use clear language and to be able to back up their environmental claims with scientific data. The Green Guides are not law and do not preempt federal, state, or local laws and regulations. Nonetheless, the FTC will use and reference its administrative Green Guides when filing claims of false or deceptive advertising against retailers under Section 5 of the FTC Act.
The Green Guides set out four general principles that apply to all environmental claims:
- Qualifications and Disclosures
Qualifications and disclosures should be “clear, prominent, and understandable.” To achieve this, retailers should use plain language in a readable font and should place any disclosure in close proximity to a qualified advertising claim. Further, retailers should avoid inconsistent statements or distracting elements that could undercut the disclosure.
- Distinctions between benefits of product, package, and service
Since environmental claims may be made about a product, service or packaging, retailers should be certain to distinguish these as necessary. For example, suppose that a shower curtain comes in a plastic package that is labeled “recyclable” without any further detail. If only the curtain or the package can be recycled, then the claim is deceptive under the Green Guides, since it is not clear what exactly is recyclable.
- Overstatement of environmental attribute
Retailers want to portray their products in the best light, but overstating an environmental benefit is not permissible under the Green Guides. For example, imagine that a rug is labeled as having “50% more recycled content than before.” If the recycled content was increased from 2% to 3%, this would be an overstatement of the environmental attribute. Though the claim is true, it is deceptive because it gives the impression that there is a significant increase in the recycled content. Another overstatement may be a claim that, while technically true, asserts a benefit with no meaningful benefit in reality. For example, if a trash bag is labeled as “recyclable” without further qualification, the claim is deceptive because trash bags are unlikely to be separated from trash for recycling.
- Comparative claims
With comparative claims, retailers need to provide appropriate context to avoid confusion. For example, if a retailer claims that its packaging has “20% more recycled content,” it is unclear whether this comparison is to a previous product or to a competitor’s product. The basis for comparison needs to be clarified. Even when comparisons are clear, the retailer must be able to substantiate the claim with proper evidence. For example, stating that a product is “environmentally preferable” likely cannot be substantiated and therefore would be considered deceptive whereas “environmentally preferable: contains 50% recycled content compared to 20% for the leading brand” would not be deceptive, provided the qualification had scientific data backing this claim.
In addition to establishing these four general principles, the Green Guides provide guidance on 14 specific types of claims.
- General Environmental Benefit Claims
- Carbon Offsets
- Certifications and Seals of Approval
- Compostable Claims
- Degradable Claims
- Free-Of Claims
- Non-Toxic Claims
- Ozone-Safe and Ozone-Friendly Claims
- Recyclable Claims
- Recycled Content Claims
- Refillable Claims
- Renewable Energy Claims
- Renewable Materials Claims
- Source Reduction Claims
When making any of the foregoing claims in advertising materials and on product packaging, retailers should consider the four general principles and the applicable specific guidance to ensure that the claims are not deceptive and that they are appropriately qualified.
In today’s marketplace, retailers understandably want to promote their products as “green.” Consumers are looking for products that are safe for themselves, their families and the earth. Yet, retailers must be careful not to misrepresent their products. By following the Green Guides, retailers can minimize the risk of being the target of an enforcement action and suffering any damage to their brand.