After almost three years of consultation and planning, and following a great deal of anticipation in recent months, the Federal Trade Commission has finally published “Proposed, Revised Green Guides.”  This latest version of the Green Guides will be open for public comment until December 10, 2010.  After that, according to an FTC press release, the agency will issue a final, official version of the Guides. 

It’s a sad truth, but consumers and regulators view environmental marketing claims with increasing skepticism.  While many companies make fair claims about the environmental attributes of their products, others are exploiting consumer demand for sustainable products with false or unsubstantiated marketing claims.  Thanks to such tactics, the term “greenwashing” has entered the marketing lexicon.  The environmental marketing firm TerraChoice brilliantly describes and defines greenwashing in its 2009 Greenwashing Report, and concludes that many, if not most, environmental marketing claims are unfounded. 

In this climate, it’s no surprise that the FTC is stepping up efforts to combat greenwashing.  A key step in this new enforcement effort is to provide more guidance on environmental marketing claims through the Green Guides.  The Guides (last updated in 1998) provide non-binding “interpretations” of federal consumer protection regulations, namely Section 5 of the FTC Act (15 U.S.C. § 45), which is the law that empowers the agency to punish deceptive practices. 

The Green Guides provide common-sense instruction on green marketing strategy, and more specific guidance on particular marketing terms that were popular in 1998, including “biodegradable,” “compostable,” “recyclable,” “refillable,” and “ozone safe.”  The new proposed Green Guides address those terms, but also provide guidance on new terms and concepts found in present-day green marketing, such as:

• environmental seals of approval,
• “free-of” and “non-toxic” claims,
• carbon offsets,
• claims concerning renewable energy, and 
• claims concerning renewable materials. 

Given the explosion of environmental marketing claims in recent years, revised Green Guides are well overdue.  But what kind of impact will they have?  The new Guides do not really change the rules; the FTC has always identified the Green Guides as “guides” useful in applying consumer protection law.  Ultimately, product claims for clean technologies will be evaluated under the FTC Act itself, for their potential to deceive consumers.  If claims are vague and unqualified, or cannot be substantiated by scientifically proven facts, they are going to be suspect. 

The FTC provides a brief summary of the proposed Green Guides here, provides the complete Guides with analysis and comment here; public comments on the proposed Guides may be submitted here.  Read more insightful commentary on the new Green Guides here, and here.

Guest Blogger Joseph ("Jay") Eckhardt is an attorney at Stoel Rives LLP, based in Portland, Oregon.