The FTC might revise its Green Guides. Here’s what you need to know.

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The Federal Trade Commission is eyeing an update of its Green Guides, having sought public comment in December 2022 on a variety of potential changes to its guides on the use of environmental claims. This is the fourth time the Green Guides have been revised since their introduction in 1992, and the revision was prompted by a growing consumer consciousness around sustainability.¹

While the Green Guides are still under review, public comments on the guides closed in April 2023.² It can thus be expected that the Green Guides update is close. Here are just some of the changes that experts say we can expect from a revised Green Guides.

New Standards for Recyclable Claims

While the contents of the final rule aren’t yet known, experts say we can expect new standards for “recyclable” claims. FTC seems particularly interested in recyclability, says Robert Marriott, director of regulatory affairs at the American Herbal Products Association (Silver Spring, MD). At present, marketers can make unqualified “recyclable” claims when recycling facilities are available to 60% of consumers where the product is sold, Marriott explains. Now, though, FTC is considering whether these products are actually recycled.

“The agency is also considering changes to its ‘compostable’ and ‘degradable’ claims, among others,” Marriott notes. “This has opened the door to new guidance on ‘organic’ and ‘sustainable’ claims.”

Dietary supplement companies should review their current label claims to ensure they know the practical recycling capacity of products labeled as recyclable, Marriott cautions. Similarly, brands making “degradable” or “compostable” claims should maintain documentation of how their products deteriorate, particularly with respect to any special conditions that products may require to break down, he says. If any such special conditions apply, they should be conspicuously disclosed in any label claims.

“Companies selling in the state of California should also pay close attention to the ongoing enactment of SB 343, a law setting standards for which products can be labeled as recyclable,” Marriott adds. “State programs like the one in California are likely to have a significant influence on the federal rule when it is finalized.”

Carbon Offsets Under the Microscope

FTC, in seeking public comment for the updated Green Guides, requested information from companies relating to a variety of specific claims in the environmental category. These claims relate specifically to climate-friendly statements, according to attorney Justin Prochnow of Greenberg Traurig LLP (Denver, CO).

“In particular, claims about carbon offsets and recyclability are the areas that will almost certainly include new or additional criteria for making claims,” Prochnow says. “This additional inquiry from FTC likely reflects the agency’s perception that there has been an increase in such claims made in advertising, as well as potential for consumer confusion.”

Prochnow notes that a variety of other “green” claims are also in FTC’s crosshairs. Claims like “ozone friendly,” “degradable,” and “recycled content” are likely to receive additional scrutiny.

Attorneys Advise Specificity in Claims

The best strategy for responding to the new Green Guides, Prochnow says, is to be as specific as possible in any kind of environmental advertising you do. FTC now takes the position that green claims are unqualified claims, which means those claims are very hard to substantiate, he explains.

“Plaintiffs’ lawyers have followed suit with frequent litigation over ‘recyclable’ claims in particular,” Prochnow says. “This has been especially true of the mini-coffee brew-at-home cup category, where the small cups are often not recyclable in all recycling facilities.”

While no specific law mandates recyclability disclosures, Prochnow says the risk of class action lawsuits dictates that companies should provide such recyclability disclosures in order to avoid expensive litigation. It’s almost certain that any revisions to the Green Guides will reinforce the notion that unqualified environmental claims can be misleading, he says; thus, claims should be appropriately qualified in order to avoid confusing consumers.

Green Guides Update Poses Legal Risks

The potential upcoming revisions to FTC’s Green Guides pose potential legal risks for brands and marketers. With new standards for recyclability claims, additional criteria around carbon offset claims, and an increased focus on substantiation, brands should invest in marketing audits to ensure their advertising is compliant with the new Green Guides. While the Green Guides are still under review by the agency, brands should act now to prepare for the likely changes—or risk being caught flat-footed.

References

1. FTC seeks public comment on potential updates to its “Green Guides” for the use of environmental marketing claims. News release. Federal Trade Commission. December 14, 2022. https://www.ftc.gov/news-events/news/press-releases/2022/12/ftc-seeks-public-comment-potential-updates-its-green-guides-use-environmental-marketing-claims
2. Federal Register. Proposed rule: Guides for the use of environmental marketing claims. December 20, 2022. https://www.federalregister.gov/documents/2022/12/20/2022-27558/guides-for-the-use-of-environmental-marketing-claims