Selling green: US FTC releases proposed revisions to the ‘green guides,’

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Courtesy of Bergeson & Campbell, P.C.

After more than three years of discussion, research, review, and debate, the United States Federal Trade Commission (US FTC) released proposed revisions to its Guides for the Use of Environmental Marketing Claims (the “Green Guides”)1 in late 2010. The Green Guides provide FTC “guidance” on what is and is not appropriate in the ever-fluid area of environmental marketing. They are designed to help product marketers avoid making false and misleading environmental claims that might violate section 5 of the Federal Trade Commission (FTC) Act.2

The proposed changes were posted on the Commission’s website on October 6, 2010 and released in the Federal Register on October 15, 2010.3 They are intended to update the existing Green Guides and make them easier for companies to use and understand.

This “Washington Watch” column provides background on the Green Guides, discusses the proposed revisions, and identifies some areas that will likely continue to pose challenges for product marketers.

Background: A Brief History of the Green Guides

Original Guidance

The Commission first issued the Green Guides in 1992.4 It can be challenging to recall how relatively nascent green marketing was at the time. Products were beginning to be marketed with assertions that they were “environmentally friendly,” “safe for the environment,” and similar claims.

The US FTC has always been keenly aware of the difference between free speech and permissible marketing on the one hand, and false and deceptive advertising on the other. In developing the Green Guides, the Commission endeavored to craft guidance that could help marketers avoid crossing the line between the two.

The Green Guides do not have the force and effect of law, and are not independently enforceable. Even with the Green Guides, under the FTC Act the Commission has the legal burden of proving that a challenged act or marketing claim is unfair or deceptive.

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