On Monday, September 14, the FTC announced that it had sent letters to five providers of environmental seals and certifications and 32 individual companies using such seals and certifications, warning them against potentially overbroad, deceptive uses. The latest edition of the FTC’s Green Guides contains a section dealing with the use of environmental seals and certifications. 16 C.F.R. Part 260.6. The Guides make clear that labeling a product with an unqualified environmental seal runs the risk of conveying an unsubstantiated and overbroad claim about the overall environmental benefits of a product. Furthermore, third-party seals and certifications do not relieve marketers of the obligation to substantiate all of the claims that they convey to consumers, including claims relating to the seals and certifications. For that reason, the FTC recommends that such seals and certifications be prominently qualified in order to explain to consumers exactly the attributes on which the certification is based. In a blog post regarding the release, the FTC reminds marketers who use a green seal or certification on products that they must “explain what the seal or certification is based on, and it has to be specific. For example, a marketer could say the product is ‘biodegradable’ or ‘recyclable.’ It’s not enough for a seal to just say ‘green’ or ‘eco-friendly;’ in fact, that could be deceptive.”
The letters to the certifiers focus on the risk of “unqualified general environmental benefit claims [which] likely convey a wide range of meanings, including that a product has specific and far-reaching environmental benefits and that an item has no negative environmental impact.” As the Green Guides state, “Because it is highly unlikely that marketers can substantiate all reasonable interpretations of these claims, marketers should not make unqualified general environmental benefit claims.”
The FTC has noted that, even for seals and certifications based on a comprehensive, multi-attribute environmental review, these kinds of qualifying disclosures may be complicated but are still required. To provide further guidance, it includes the following example in the Guides of how it thinks this could be done:
“A one-quart bottle of window cleaner features a seal with the text ‘Environment Approved,’ granted by an independent, third-party certifier with appropriate expertise. The certifier granted the seal after evaluating 35 environmental attributes. This seal likely conveys that the product has far-reaching environmental benefits and that Environment Approved certified the product for all of these benefits and therefore is likely deceptive. The seal would likely not be deceptive if the marketer accompanied it with clear and prominent language clearly conveying that the seal refers only to specific and limited benefits. For example, the seal could state: ‘Virtually all products impact the Environment. For details on which attributes we evaluated, go to [a Web site that discusses this product].’ The referenced Web page provides a detailed summary of the examined environmental attributes. A reference to a Web site is appropriate because the additional information provided on the Web site is not necessary to prevent the advertisement from being misleading. As always, the marketer also should ensure that the advertisement does not imply other deceptive claims, and that the certifier’s criteria are sufficiently rigorous to substantiate all material claims reasonably communicated by the certification.”
As with the 60+ letters it sent to advertisers last year regarding the use of disclaimers, the FTC has chosen to send several dozen warning letters at once, without naming any of the recipients. This generic announcement of the warning letters should be interpreted as a broad message about specific practices that the FTC is concerned about and will continue to monitor. Each of the individual letters requests that the certifying organizers and advertisers advise the FTC regarding the steps they have taken to come into compliance.
In our experience, the FTC will follow up with any letter recipient that fails to respond adequately and will also take more aggressive enforcement action in the future against any advertiser that doesn’t heed the strong message conveyed by the warning letters.
Image courtesy of FTC.gov