Green Claims: An Excerpt from the Advertising Law Tool Kit

Join us as we spotlight select chapters of Venable’s popular Advertising Law Tool Kit, which helps marketing teams navigate the legal risk of campaigns and promotions. Click here to download the entire Tool Kit, and tune in to the Ad Law Tool Kit Show podcast, to hear the authors of this chapter dive deeper into the issue of green claims.

Protecting the planet against climate change is a social movement—and big business. The Federal Trade Commission (FTC) has issued detailed and specific guidance for marketers about how to substantiate so-called green claims. Unsubstantiated green claims have been, and will continue to be, an enforcement priority. The FTC has sought comments on updates to the Green Guides, and new Guides are likely to be issued in 2024. State laws have also been passed that regulate specific “green” claims, which regulators have begun aggressively enforcing. Furthermore, plaintiffs’ class action lawyers are focusing on green claims across a variety of industries, from transportation to cosmetics.

Marketers planning to use green claims to promote the environmentally conscious aspects of a product should consider the best practices below to avoid so-called greenwashing. Even if you are making green claims only to distributors or retailers rather than directly to consumers, the FTC’s Green Guides still apply to you, as such claims are often “passed along” to consumers.

In assessing a green claim, marketers should consider the following:

• Can the marketer substantiate “green” benefits of the product with competent and reliable scientific evidence?
• Avoid general claims, such as “green” or “earth friendly,” unless they can be qualified to explain the specific environmental benefit(s) the product provides.
• Qualify your claims to specify whether they apply to the service you provide, the product you sell, any product packaging, or a combination thereof.
• If you are using seals of approval or certifications, tell consumers what they mean, disclose whether the award is from a third party based on objective criteria, and disclose any material connection you may have with the third party. Limit your claim to that which is certified.
• If the product is ordinarily disposed of in landfills, it cannot support an unqualified “biodegradable” claim.
• Support carbon offset claims with competent and reliable scientific evidence and disclose whether the emissions reduction is expected far into the future (2+ years).
• Do not make “nontoxic” claims, unless the product has been proved safe for people and the environment generally, using competent and reliable scientific evidence.
• Avoid “free of” claims unless you have not intentionally added any of the substance to your product and any naturally occurring amounts are at “trace” levels not associated with possible harm.
• Use “renewable materials” claims only when the material used is identified and the renewable amount of the product and the method used are disclosed.
• When claiming your product or its packaging is “recyclable” (and specify what exactly is recyclable), ensure that the product or packaging is recyclable by at least 60 percent of consumers where the product is sold. If it is not, qualify the claim by disclosing the limited availability of recycling for the product.
• Use “recycled content” claims only if the materials were actually diverted from the waste stream and the amount diverted is disclosed.

To learn about green claims, contact Len Gordon or Shahin Rothermel. For more insights into advertising law, bookmark our All About Advertising Law blog and subscribe to our monthly newsletter.