Green Market Piedmont Park Atlanta Georgia 1 © by tedeytan

If you market “green” products, heads up:  the FTC wants to change what you can legally say in your advertising.

With a nod to the growing demand for green products and the unfortunate rise of “greenwashing” as a marketing practice, the FTC wants to make it harder for marketers to broadly claim they are “green” or “eco-friendly”.

However, three popular phrases – “sustainable”, “natural” and “organic” – are not covered by the proposal.  The FTC says these terms are already covered under Department of Agriculture regulations, even though earlier this year the FTC did send warning letters to 78 retailers, including Wal-Mart and Target, for incorrectly advertising rayon clothing as made of bamboo.

As for the current proposal, the FTC has both clarified existing regulations and added some new ones as well.

More importantly, they want to know what you think of them.  They’re asking the public for comments until December 10, 2010; they’ll issue their final guidelines in the first half of 2011.

Here is a summary of the proposal.  A link to the website to submit your comments follows at the bottom of the article.

 

Proposed Revisions to Guidelines

General Environmental Benefit (e.g., “Green”, “Eco-Friendly”)

  • Marketers may not make unqualified general environmental benefit claims.  They are difficult or impossible to substantiate.
  • Qualifications must be clear and prominent, should limit the claim to a specific benefit, and the context may not imply deceptive environmental claims.

 

Certifications and Seals of Approval

  • Certifications and seals are endorsements covered in the FTC’s Endorsement Guides, but the proposal provides new examples illustrating how those Guides apply to environmental claims, such as that marketers must disclose material connections to the certifier.
  • If a certification/seal does not state the basis for certification, marketers must use clear and prominent language that limits the claim to the particular attributes they can substantiate.
  • Third-party certification does not eliminate a marketer’s obligation to have substantiation for all conveyed claims.

 

“Degradable”

  • For solid waste productst that will not go into landfills, incinerators or recycling facilities, complete decomposition must occur no more than one year after customary disposal.
  • Marketers may not make unqualified degradable claims for items destined for landfills, incinerators or recycling facilities because decomposition will not occur within one year.

 

“Compostable”

  • To use the claim “compostable”, all materials in a product/package must break down in approximately the same time as the materials with which it is composted.

 

“Ozone-Safe”/”Ozone-Friendly”

  • The proposal contains minor updates to examples to reflect changes in regulations concerning ozone-depleting chemicals.

 

“Recyclable”

  • Marketers must disclose the limited availability of recycling programs, according to a three-tiered analysis:

1.       If a “substantial majority” of consumers/communities have access to recycling facilities, marketers may make unqualified recycling claims.

2.       If a “significant percentage” of consumers/communities have access to recycling facilities, marketers must qualify recyclable claims (e.g., “This package may not be recyclable in your area.”).

3.       If less than a “significant percentage” of consumers/communities have access to recycling facilities, marketers must qualify recyclable claims (e.g., “This product is recyclable only in the few communities that have recycling programs.”).

 

“Free-of”/”Non-Toxic”

  • Free-of: 

1.       A claim may be deceptive if the item has other substances that pose the same environmental risk as the substance not included.

2.       A claim may be deceptive if the substance has never been associated with that product category.

3.       A claim may be appropriate if the item contains a de minimis amount of a substance.

4.       A claim may convey additional environmental claims, including general benefit or comparative superiority claims.

  • Non-Toxic:   A claim likely conveys that an item is non-toxic both for humans and for the environment generally.

Proposed New Guidelines

“Made with Renewable Materials”

  • Marketers must provide specific information such as what the renewable material is, how it is sourced, and why it is renewable.
  • Marketers must qualify if the item is not entirely made from renewable materials.

 

“Made with Renewable Energy”

  • Marketers must qualify their claim if the power used to manufacture any part of the product was derived from fossil fuels.
  • Marketers must specify the source of the renewable energy.
  • Marketers must qualify if any of the significant manufacturing processes involved in making the product or package were powered with renewable energy or conventional energy offset by renewable energy certificates (RECs).
  • Marketers that generate renewable energy but sell RECs for all of the renewable energy they generate should not represent that they use renewable energy.

 

“Carbon Offsets”

  • Marketers need scientific evidence to support carbon offset claims and must use appropriate accounting methods to properly quantify emission reductions.
  • Marketers must disclose if the offset they’ve bought will not reduce emissions for two years or longer.
  • Marketers may not advertise carbon offsets if the offsets are required by law.

 

It’s important to note again that these changes are not final, and that the FTC wants to hear your opinions on them.  Visit https://ftcpublic.commentworks.com/ftc/revisedgreenguides by December 10 to submit your comments directly to the FTC electronically.  The FTC will issue their final guidelines during the first half of 2011.