| Intellectual Property Law Alert New FTC "Green Guides" Are Out of the Gate October 7, 2010 Following several years of development, and much anticipation in recent months, the Federal Trade Commission has finally released the "Proposed, Revised Green Guides" yesterday. The new Green Guides will be open for public comment until December 10, 2010. Thereafter, according to the agency's press release, the FTC will determine if and how to issue the new Guides. The proposed, revised Green Guides are summarized here and published with analysis and comment here. The FTC invites public comments here. The current official Green Guides, last updated in 1998, provide non-binding "interpretations" of federal consumer protection laws, including Section 5 of the FTC Act (15 U.S.C. § 45), which empowers the agency to punish deceptive practices. In general, the Guides establish that false or deceptive environmental marketing claims can be challenged under the FTC Act. The Green Guides also provide instruction and interpretations of marketing buzz words that were popular in 1998, such as "biodegradable," "compostable," "recyclable," "refillable," and "ozone safe." The proposed new Green Guides address the terms found in the 1998 edition, but also address several new issues that arise in present-day green marketing, including: - environmental seals of approval,
- "free-of" and "non-toxic" claims,
- carbon offsets,
- claims concerning renewable energy, and
- claims about renewable materials.
The proposed Green Guides reinforce and restate the FTC's policy that environmental marketing claims should be supported by credible scientific evidence. In addition, the proposed Guides discourage sweeping unqualified claims. For example, the Guides explain that an unqualified claim that a product is "eco-friendly" is inherently deceptive. In contrast, a simple clarification – if it can be substantiated – may be acceptable. The Guides state that a claim such as "eco-friendly: made with recycled materials" is not deceptive if the clarification is prominent and can be proven. For the most part, the Green Guides don't represent a radical shift from the 1998 version. On a careful reading of the revised Guides and the preceding 186 pages of FTC analysis and comment, it's clear that the fundamental issue is deception. It's deceptive to say your product has 50% more recycled contents than it used to, when your product only increases recycled content from 2 percent to 3 percent. It's deceptive to mark your product with your own green "seal of approval" and not disclose that you made up the seal yourself. It's deceptive to claim that you'll plant trees to offset carbon emissions from your products, when it will take 10 years for the trees to get big enough to actually offset those emissions. Ultimately, it does not appear that the FTC is proposing a major shift in regulations. The key question for any environmental marketing claim remains the same: is the claim "deceptive" under Section 5 of the FTC Act? But the even bigger question is: how will enforcement change? Last February, The New York Times reported that the FTC has filed seven complaints concerning environmental marketing claims since President Obama took office (compared to zero during the prior administration). If enforcement remains at that level, there can't be substantial application of the new Green Guides. Then again, given the rapid growth of environmental marketing claims in recent years, the FTC's renewed interest in this subject, and the threat of state consumer fraud actions, it would be imprudent to disregard the new Guides. If you have any questions about this update, please contact: Jere Webb at (503) 294-9460 or jmwebb@stoel.com
Ken Odza at (206) 386-7595 or kmodza@stoel.com
Jay Eckhardt at (503) 294-9189 or jneckhardt@stoel.com If you currently subscribe to Stoel Rives client alerts, click here to update your contact information and preferences. To join the Stoel Rives mailing list and ensure direct delivery of future alerts, click here to subscribe. |
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