It is Not Easy Being Green: FTC Guidelines on Environmental Marketing Claims
Consumers have been concerned about the environmental impacts of the products that they purchase for decades. Companies have responded with marketing campaigns advertising the environmental benefits of their products; however, environmental claims can be disputable or difficult to prove, and consumers may interpret an environmental claim differently than a company intended. It is not always easy telling whether a product is “green.”
To address these concerns, the Federal Trade Commission (the “FTC”) has published Guides for the Use of Environmental Marketing Claims, which are commonly referred to as the “Green Guides.” The Green Guides can be found at 16 C.F.R. § 260.01 et seq. or on the FTC’s website at https://www.ftc.gov/legal-library/browse/federal-register-notices/guides-use-environmental-marketing-claims-green-guides.
What are the FTC Green Guides?
The purpose of the Green Guides is to “help marketers avoid making environmental marketing claims that are unfair or deceptive . . .” 16 C.F.R. § 260.01(a). These guidelines are administrative interpretations of the law and do not confer a private right of action, but the FTC can take action if a company makes an environmental claim that is inconsistent with the guidance provided.
The Green Guides address the substantiation required to make an environmental marketing claim. They explain that:
In the context of environmental marketing claims, a reasonable basis often requires competent and reliable scientific evidence. Such evidence consists of tests, analyses, research, or studies that have been conducted and evaluated in an objective manner by qualified persons and are generally accepted in the profession to yield accurate and reliable results. Such evidence should be sufficient in quality and quantity based on standards generally accepted in the relevant scientific fields, when considered in light of the entire body of relevant and reliable scientific evidence, to substantiate that each of the marketing claims is true.
16 C.F.R. § 260.02.
Detailed Qualifications and Disclosures to Implement
The Green Guides further contain general principles that should be used in interpreting all environmental marketing claims to prevent deceptive claims. The guides also state qualifications and disclosures should be clear, prominent, and understandable. To make disclosures clear and prominent, marketers should:
- use plain language and sufficiently large type;
- place disclosures in close proximity to the qualified claim;
- avoid making inconsistent statements or using distracting elements that could undercut or contradict the disclosure;
- clearly distinguish between the benefits of a product, package, or service;
- not overstate, directly or by implication, an environmental attribute or benefit;
- state or imply environmental benefits if the benefits are negligible; and finally,
- be clear to avoid consumer confusion about the comparison of products.
The guidelines also contain many specific examples of claims the FTC considers deceptive or acceptable and touch on several specific types of environmental marketing claims such as claims regarding carbon offsets or concerning certifications and seals of approval. Other claims touched upon concern whether a product is:
- compostable or degradable;
- non-toxic or free of certain substances;
- ozone-safe or ozone friendly;
- recyclable or contains recycled content;
- refillable;
- made with renewable energy or is renewable; and
- reduced in weight, volume, or toxicity.
For instance, with respect to a claim of general environmental benefits, the Green Guides explain the brand name “Eco-friendly” likely conveys that the product has far reaching environmental benefits and may convey that the product has no negative environmental impact. Because it is highly unlikely that the marketer can substantiate these claims, the use of such a brand name is deceptive. A claim, such as “Eco-friendly: made with recycled materials,” would not be deceptive if:
- the statement “made with recycled materials” is clear and prominent;
- the marketer can substantiate that the entire product or package, excluding minor, incidental components, is made from recycled material;
- making the product with recycled materials makes the product more environmentally beneficial overall; and
- the advertisement’s context does not imply other deceptive claims.
Why Should Companies Adhere to the Green Guides?
There are at least three important reasons for companies to be aware of and follow the Green Guides. First, the FTC can take enforcement action against businesses who violate the Green Guides and has previously brought enforcement actions resulting in substantial settlements against businesses that have, for example, falsely claimed that their products were organic, that bamboo products were “free of harmful chemicals, using clean, non-toxic materials,” or that products were free of volatile organic chemicals.
Second, consumers can bring claims under state deceptive and unfair practices statutes alleging that environmental representations in marketing are deceptive or false and cite the Green Guides as authority supporting those claims. For instance, the guides have been cited in support of consumer class action claims that products are deceptively marketed as “plant based” or “sustainable.” See, e.g., Whiteside v. Kimberly Clark Corp., 108 F.4th 771, 784 (9th Cir.2024); Bohen v. ConAgra Brands, Inc., N.D. Ill. No. 23 C 1298, 2024 U.S. Dist. LEXIS 52409, at *27-28 (Mar. 25, 2024).
Third, a company can bring claims under the Federal Lanham Act or its state equivalents alleging that a competitor’s environmental marketing is deceptive. Depending on the circumstances, a company can obtain injunctive relief requiring that the competitor remove the deceptive advertising and/or issue corrective advertising and money damages.
Kermit had it right. It is not always easy being green – companies should be familiar with the Green Guides and consider them carefully before making environmental claims in their marketing.
