On December 20, the Federal Trade Commission ("FTC") published its Request for Public Comment, which is the first stage in the review process for updating its Guide for Use of Environmental Marketing Claims (the "Green Guides"). Last updated in 2012 (and first issued in 1992), the Green Guides provide guidance applicable to environmental marketing claims as well as specific guidance on a number of common claims and their substantiation standards.
FTC guidance is not law, but rather provides consumers and marketers an overview of what practices the FTC believes fall within and without Section 5 of the FTC Act, which governs unfair and deceptive acts and practices. Stakeholders, including interested consumers, have until February 21, 2023 to submit comments.
The Request for Comment is part of the FTC's periodic—generally once a decade—review of its guidance documents. FTC's goal is to keep its advice as current as possible by learning what has worked, what has not worked, where changes are needed and fundamentally, whether to keep, update or rescind existing guidance. For green claims, this review is particularly timely and important because of, as the FTC explained in its initial press release announcing the review, the "increased attention to environmental concerns, including climate change and issues driven by the COVID-19 public health crisis." This confluence of events has likely influenced the ever-increasing use of environmental claims—some novel—to market goods and services. Additionally, environmental science and technology have evolved since 2012 as has consumer perception of environmental concerns and claims, and the Green Guides should reflect those changes.
The FTC seeks feedback on the Green Guides generally, opening its request with questions such as:
- Are the Green Guides useful?
- What impact have they had?
- What costs have they imposed on consumers and businesses, and how can those costs be reduced?
- What topics are not covered that should be?
- Is industry complying with the Green Guides?
- Do the Green Guides overlap or conflict with other federal, state, or local laws?
- Should the FTC initiate rulemaking related to deceptive or unfair environmental claims (instead of simply issuing guidance)?
In addition, the FTC requests comments on specific existing claims including carbon offset claims, compostable claims, degradable claims, ozone-safe/ozone-friendly claims, recyclable claims, recycled content claims, and energy use/energy efficiency claims. The FTC identifies "organic" claims for non-food products and "sustainable" claims as ones they declined to define in 2012 but are interested in revisiting. Related to carbon offset claims, the FTC seeks comment on other climate change-related claims, such as "net zero," "carbon neutral," and "carbon negative."
What comes next
Following the close of the comment period, and any extensions thereof, the FTC will review, digest and eventually either rescind the Green Guides (beyond unlikely here), maintain it in its current form (equally unlikely), or issue a revised draft of the Green Guides for final commentary before publishing the guidance in its final form. There is no set timeline, but traditionally it takes about two years from publication in the Federal Register to issuance of new guidance. In the meantime, expect the FTC to continue actively monitoring and bringing enforcement action in the green space.