On July 2, 2021, the Federal Trade Commission (“FTC”) announced its modified ten-year regulatory review schedule. The consumer protection agency reviews its rules and industry guides on a ten-year schedule to ensure that they remain relevant and not unduly burdensome, and in furtherance of this, it publishes an annual review schedule with adjustments made in response to public input, changes in the marketplace, and resource demands.
According to the newly-released review schedule, the FTC revealed that it intends to initiate its review of the Guides for the Use of Environmental Marketing Claims (“Green Guides”) in 2022 after last revising the sweeping eco-centric guidelines back in 2012. Aimed at helping marketers to make “truthful and non-deceptive” claims about the environmental attributes of their products, the 2012 revision of the Green Guides mandates, for instance, that marketers must “not make unqualified general environmental benefit claims because ‘’it is highly unlikely that marketers can substantiate all reasonable interpretations of these claims.’”
More specifically, the FTC 300-plus page Guides take on some of the common “green” labels. For example, the FTC states that labeling a product as “green” because it is made with recycled content could be deceptive if the environmental costs of creating and using the recycled material exceed the benefits of using it. In terms of labeling a product as “biodegradable,” the FTC states that the product it must “completely break down and return to nature” within one year for such a term to apply.
As for what the FTC did not do when it modified the Green Guides – which are administrative interpretations of law and are not independently enforceable – back in 2012: It failed to define what “sustainability” means in concrete terms for marketers. This has enabled brands to continue to deal in often fluffy, forward-looking statements on the “sustainability” front without having to prove the veracity of the statements or face false advertising ramifications.
While there is no telling what changes the FTC might make to the existing Green Guides next year, given that the vast majority of the buzzy marketing terminology that brands use is just that – buzzy marketing terminology – as opposed to consisting of objectively discernible or quantifiable terms, and in light of the widespread consumer confusion about what “sustainability” does and does not mean, there is certainly room for the FTC to go further in defining what many of these terms actually mean.