FTC Green Guides

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The Federal Trade Commission (“FTC”) announced it is seeking public comment on potentially updating, expanding, and/or altering the Guides for the Use of Environmental Marketing Claims, known as the Green Guides (16 CFR pt 260).  Yesterday, December 14, 2022, the FTC held an open Commission meeting where the Commissioners voted 4-0 to approve the publication of a Federal Register notice announcing a public comment period.  The notice is expected to be published in mid-January.  Once the notice is published in the Federal Register, comments will be due within sixty days.   

The FTC’s Green Guides are designed to help advertisers avoid making environmental claims that may mislead consumers.  77 Fed. Reg. 62122 (Oct. 11, 2012).  The Green Guides discourage unqualified environmental benefit claims, nothing that they are difficult, if not impossible, to substantiate.  The Green Guides were first issued in 1992 and last updated in 2012.  An update to the Green Guides has been expected and desired by many as the Green Guides help businesses to make accurate environmental marketing claims and, if followed, help businesses ward off allegations of deceptive advertising claims. Continue Reading FTC Seeks Public Comments on the Green Guides

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In 2020, Greenpeace published a major report that purports to show that less than 15% of all plastic, including single-use plastic that is labeled as “recyclable,” is actually recycled in the United States. These dramatic findings kicked off a new wave of putative class action cases against manufacturers who regularly use plastic packaging, much of which is labeled as recyclable. For example, mere days after issuance of the Greenpeace Report, Earth Island Institute sued a group of ten major companies, including Coca-Cola, Pepsi, Clorox and Nestle over the use of plastic packaging that allegedly contributes substantially to plastics pollution in California waterways.

On Monday, the United States District Court for the Northern District of California dismissed one of the more prominent recent cases, which had been filed by Greenpeace itself against Walmart. Greenpeace, Inc. v. Walmart, Inc., No. 21-cv-00754-MMC (Sept. 20, 2021). Greenpeace’s case, brought under the widely-used, California consumer protection law, Cal. Bus. & Professions Code §17200 (“UCL”), sought to hold Walmart liable for making what Greenpeace alleged were false and misleading “recyclable” claims for certain products. Greenpeace alleged that the claims were false, not because the products are not recyclable, because most consumers do not have access to recycling programs that could accept the products for recycling.
Continue Reading Greenpeace Plastics Recyclability Suit Dismissed for Lack of Standing

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.”

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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,
Continue Reading The FTC’s Latest Warning Letter Barrage Targets Misuse of Environmental Seals and Certifications.