FTC Seeks Public Comment on Potential Revisions to the Green Guides and on a Possible Rulemaking

Earlier today, the Federal Trade Commission announced that it is seeking public comment on proposed revisions to its Guides for the Use of Environmental Marketing Claims.  The FTC is also asking for input on whether the Commission should initiate a rulemaking to codify (some or all of) the standards set forth in the Green Guides.

The Green Guides were first issued in 1992 and were last revised in 2012.  This review of the Green Guides is part of the FTC's regular review of all of its rules and guides which happens on a ten-year cycle.  In announcing the review, Samuel Levine, the Director of the FTC's Bureau of Consumer Protection, said, "We look forward to this review process, and will make any updates necessary to ensure the Green Guides provide current, accurate information about consumer perception of environmental benefit claims."  FTC Chair Lina M. Khan, in a separate statement, explained, "To be effective, the Green Guides have to keep up with developments in both science and consumer protection.  That's why the Commission is commencing a regulatory review of the guides." 

The FTC is just at the beginning of its review of the Green Guides.  The FTC is not proposing specific changes to the guidance at this point.  Instead, in its Request for Public Comment, the FTC is inviting the public to answer a series of thirty-one questions (not including subparts!) that will help inform its review process.  The FTC said that it plans to publish the Request for Public Comment in the Federal Register in mid-January, after which the FTC will accept comments for 60 days. 

While it's way too soon to tell where the FTC is specifically going with this review, the Request for Public Comment does provide some insight into the environmental issues that FTC is thinking about right now.  Here are some of the highlights.

New claims

.  The FTC is interested in hearing about environmental marketing claims that aren't currently covered by the Green Guides.  The FTC explained, "The Commission notes the proliferation of environmental benefit claims includes claims not currently addressed in the Guides.  Accordingly, this review is important to ensure the Guides reflect changes in the marketplace over time."  And, as Chair Khan indicated in her statement, "I'm particularly interested in receiving comments, including consumer perception research, on relatively emerging environmental topics." 

Conflicts with other laws

.  Recognizing that states and others have been passing their own laws and regulations related to environmental marketing, the FTC wants to understand whether the Green Guides overlap or conflict with other rules that are out there.  

Foreign law

.  The FTC asks whether there are foreign laws that the FTC should consider as it conducts its review of the Green Guides.  Interestingly, the FTC asks, "Should the Guides be modified to harmonize with these international laws, regulations, or standards?"

Carbon offsets and climate change

.  The FTC asks whether it should revise its guidance relating to carbon offsets and whether it should address other types of advertising claims related to carbon offsets and climate change.  In particular, the FTC asks about the meaning of terms "net zero," "carbon neutral," "low carbon," and "carbon negative." 

Compostable

.  Noting that claims about compositing in municipal facilities should be qualified if facilities are not available to a substantial majority of consumers or communities where the item is sold, the FTC asks whether the guidance should be revised to define "substantial majority" (as it did during the last review for "recyclable").

Degradable

.  The Green Guides currently provide that, for unqualified degradability claims, the products should completely break down or return to nature within a reasonably short period of time after customary disposal, and for products that go to a landfill, they should degrade within one year.  In the Request for Public Comment, the FTC asks whether these time frames should be updated and whether the FTC should provide other guidance related to what claims about biodegradability communicate about how long it will, in fact, take for those products to break down. 

Reyclable

.  The FTC is clearly interested in claims about recyclability and expects to get many public comments about this as well.  One of the big issues that the FTC asks about -- that could have significant impact on marketers -- is whether the Green Guides should be revised to address whether  marketers should make recyclability claims if the products are collected by recycling programs but "not ultimately recycled due to market demand, budetary constraints, or other factors."  As Chair Khan said in her statement, "One question, then, is whether claims that a product is recyclable should reflect where a product ultimately ends up, not just whether it gets picked up from the curb." 

Recycled content

.  The FTC also asks a number of questions about recycled content claims.  For example, do the Green Guides provide sufficient guidance?  Should they be revised to provide guidance on alternative methods for making recycled content claims, such as based on mass balance calculations, certificate systems, or other methods?  Should the FTC provide new guidance on pre-consumer and post-industrial recycled content claims? 

Energy use and energy efficiency

.  The Request for Public Comment asks whether the FTC should add new guidance on energy use and energy efficiency claims for home-related products, electric vehicles, or other products. 

Organic

.  Noting that it had declined to issue guidance on "organic" claims back in 2012, the FTC asks whether it should provide guidance on making "organic" claims as part of this update to the Green Guides. 

Sustainable

.  And, as expected, the FTC is asking whether it should provide guidance on making "sustainability" claims.  (Yes, please.)

The FTC has clearly been thinking deeply about environmental marketing issues and has put together a thoughtful set of questions to be addressed.  There's a lot here -- so we should expect a lengthy and detailed review process. Based on the questions, it sure sounds like we should also expect that we'll ultimately end up with some substantial revisions to the Green Guides.