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Following a 4-0 vote earlier this month on “whether to publish a Federal Register notice commencing a regulatory review of the Guides for the Use of Environmental Marketing Claims, known as the ‘Green Guides,’” the Federal Trade Commission (“FTC”) is seeking comment on potential updates and changes to the Green Guides. In a release on December 14, the regulator said that it is requesting “general comments on the continuing need for the guides, their economic impact, their effect on the accuracy of various environmental claims, and their interaction with other environmental marketing regulations.” It is also seeking “information on consumer perception evidence of environmental claims, including those not in the guides currently.”

First issued in 1992 and were revised in 1996, 1998, and 2012, the Green Guides 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. A potential new revision comes as “consumers are increasingly conscious of how the products they buy affect the environment, and depend on marketers’ environmental claims to be truthful,” according to Bureau of Consumer Protection Director Samuel Levine.

As for specific issues on which the FTC says that it expects to get many public comments, those include …

Carbon Offsets and Climate Change: The current Guides provide guidance on carbon offset and renewable energy claims. The Commission invites comments on whether the revised Guides should provide additional information on related claims and issues.

The Term “Recyclable:” Among other things, the 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 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:” Comments are requested 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: The Commission 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.

THE BOTTOM LINE: Reflecting on potential changes to the Green Guides, Beveridge & Diamond PC stated in a note that “the most direct impact of the Green Guides refresh will be on federal enforcement regarding allegedly false or misleading environmental marketing claims.” However, they state that the Green Guides “also serve to guide: 1) Enforcement of state consumer protection laws; 2) @ourt decisions on civil suits, including class action greenwashing suits; and C) competitor challenges brought before the National Advertising Division of the Better Business Bureau.”

As such, even if the Green Guides remain non-binding, the Beveridge & Diamond attorneys assert that “any refresh will the potential legal consequences stemming from environmental claims. Beyond federal and state regulation, companies should also take note of the growing risk of consumer and class action litigation related to corporate sustainability marketing claims.”

UPDATE (Jan. 31, 2023): The FTC has announced that “at the request of several interested parties,” it has extended the public comment period for 60 days, until April 24, 2023. The regulator stated that its vote to approve extension of the public comment period, which was set to expire on February 21, was 4-0. 

This article was initially published on December 14, 2022.