On Jan. 31, the U.S. Federal Trade Commission (FTC) extended the deadline for its recent request for public comment on updating its Guides for the Use of Environmental Marketing Claims (“Green Guides”) to April 24, 2023. Comments were originally due by Feb. 21, 2023.

The Green Guides provide guidance to businesses that want to use environmental marketing claims in their advertising and labeling. The Green Guides aim to help businesses avoid deceptive or misleading environmental claims in violation of section 5 of the FTCA (Federal Trade Commission Act). The Guides assist businesses in determining how consumers are likely to interpret specific claims and how to substantiate environmental claims made about their products or services.

The FTC’s general practice is to review its rules and guides at least once every 10 years. The agency is seeking comments about the efficiency, costs, benefits, regulatory impact, consumer perception, etc., of the Green Guides, to determine whether to retain, modify, or rescind the guides, related to several topic areas including sustainability, recyclability, and ozone related statements.

FTC has asked for input on the following:

  • The current effectiveness of the Green Guides;
  • Societal changes that have occurred since the last revision that should impact additions or removals from the Green Guides;
  • Whether the Green Guides should remain guidance documents or whether FTC should initiate the rulemaking process;
  • How the Green Guides currently interact with other environmental marketing regulations; and
  • Comment on specific environmental marketing claims.

ACA will be hosting an hour-long member webinar on March 30 to address the FTC’s request for feedback. The webinar, led by Verdant Law’s Phil Moffat and Irene Hantman, will address the latest developments related to FTC’s request, with an emphasis on potential implications for the coatings industry.

Background

Issued in 1992 and revised in 1996, 1998, and 2012, the Green Guides reflect a mix of the legal and the practical. They are not stand-alone federal regulations, but according to FTC, offer guidance to, “explain the FTC’s thinking about how the FTC Act’s prohibition on unfair or deceptive practices applies to the kind of environmental claims consumers are likely to encounter in the marketplace.” The Green Guides also include several hypotheticals that address the real-world situations companies face when trying to craft green claims.

The FTC is seeking perspectives on the use of certain terms in advertising, labeling, and packaging. Claims like “recyclable,” “recycled content” “compostable,” “degradable,” and “ozone-safe/ozone-friendly” are covered in the current Green Guides. FTC seeks input on whether it should reexamine what consumers understand those words to mean.

In the Dec. 20, 2022 Federal Register notice FTC invited insight into representations about carbon offsets and climate change. Specifically, FTC asked the following questions: Is there evidence of misleading climate change-related claims in the marketplace? Should the FTC provide guidance to help advertisers avoid deception? What about energy use and energy efficiency? Should FTC consider adding guidance on energy-related claims for items for the home or other products?

Additionally, FTC sought similar input on “organic” and “sustainable” claims. In 2012, FTC declined to issue guidance on “organic” claims for non-agricultural products and determined it didn’t have enough evidence about consumer perception to offer guidance about “sustainable” claims. However, FTC is now asking it should revisit those determinations.

Contact ACA’s Riaz Zaman for more information.