Natural Foods Merchandiser

Government takes on the greening of advertising

Q: What are green claims and Green Guides, and what action is the Federal Trade Commission currently taking?

A: A green claim is the general term for a claim that describes and promotes a product's beneficial effect on the environment or ecosystem, or that states or implies it is manufactured or packaged in an environmentally friendly way, e.g., recyclable or biodegradable. In 1992, the FTC decided that guidance was necessary for the industry, so it published the first "Guides for the Use of Environmental Marketing Claims," commonly known as the Green Guides. The FTC revises these guides periodically to respond to new eco claims in the marketplace, and to prevent deceptive and unfair advertising—its general mission.

Q: Why is the FTC revising its Green Guides now rather than in 2009 as planned?

A: Since the Green Guides were last updated in 1998, the FTC has tracked a significant increase in the use of environmental claims in product marketing. Marketers frequently use terms addressed in the Green Guides, such as recycled content, degradable, compostable or refillable, to claim that their packaging is green. But now sellers and marketers are using other green claims not addressed in the current Green Guides, including popular terms such as sustainable and renewable. The FTC is concerned that when such claims are used to sell products, consumer perception and substantiation issues may arise.

Q: Does the FTC have other concerns about green ads?

A: Yes, the commission also notes that recently there has been increased use of environmental seals and third-party certification programs purporting to verify the positive environmental impact of packaging. Yet consumers may have varying interpretations of these seals and programs. The FTC's position is that eco seals imply that a product is environmentally superior to other products. Because such claims are difficult to substantiate, seals should be accompanied by an explanation of the basis for the certification. If the seal indicates that a third party has certified the product, then the certifying party must be truly independent from the marketer and must have professional expertise in the specific area being certified.

Q: What are the philosophical and economic reasons for the FTC's concerns and monitoring of green claims?:

A: The FTC is a consumer-protection agency that works to ensure that advertising is fair and not misleading. Consumers generally pay more for products with green claims, and if those claims are false, deceptive or unsubstantiated, then consumers are both being cheated and possibly dissuaded from buying similar products that may be more eco-friendly. In addition, the FTC seeks to establish a level playing field for all competitors in the green sector.

Q: How is the FTC using public meetings for this review-and-revision process? Specifically, what was the purpose of the Green Guides and Packaging workshop?

A: This was the second in a series of public workshops held as part of the agency's regulatory review of the Green Guides. The workshop was free and open to the public, and was held in Washington, D.C., on April 30—specifically to examine green-packaging claims and consumer perception of such claims. This workshop provided a forum for the discussion of: 1) recent trends in packaging and their resulting environmental claims; 2) packaging terms currently covered by the Green Guides, and whether consumer perception of them has changed; 3) new green-packaging terms not addressed in the current Green Guides; 4) claims based on third-party certification, and consumer perception of such seals; 5) the impact of technological advances, including the use of new packaging materials and their impact on the environment; 6) the current state of substantiation for green-packaging claims; and 7) the need for new or updated FTC guidance in all six areas.

Q: What are the major mistakes that marketers make with green claims?

A: In general, the FTC is looking for false, deceptive and unsubstantiated claims, such as a nontoxic pesticide—which clearly would have some effect on the environment, even if there are no risks to the consumer when used according to directions. One group, TerraChoice Environmental Marketing, has written an amusing article called The "Six Sins of Greenwashing," which catalogs the six fault lines: 1) Sin of the Hidden Trade-Off, 2) Sin of No Proof, 3) Sin of Vagueness, 4) Sin of Irrelevance, 5) Sin of Lesser of Two Evils and 6) Sin of Fibbing. This group found that the most common sin was the first: For instance, a label claiming green and sustainably harvested is deceptive when the ingredient is actually harvested in Asia and then imported, making its carbon footprint huge. The harvest is only one aspect of the product, and the product as a whole may not be greener than others.

Q: What is the FTC's substantiation requirement for green claims?

A: In general, all marketers making claims about the attributes of their product, package or service—whether the claims are express or implied—must have a reasonable scientific basis for their claims. For environmental claims, a reasonable basis often requires competent and reliable scientific evidence, which the FTC has defined as "tests, analyses, research, studies or other evidence based on the expertise of professionals in the relevant area conducted and evaluated in an objective way by qualified people using procedures generally accepted in the profession to yield accurate and reliable results."

Q: What is the FTC's specificity requirement for green claims?

A: An environmental marketing claim should specify whether it refers to the product, the packaging or both, or just to a component of the product or its packaging. For example: A box of cereal is labeled recycled package. The package consists of a cardboard box with a wax paper bag inside holding the cereal. By itself, the claim recycled package could apply to both the box and the bag. But if only the box is recycled, the claim is deceptive. It should be qualified to say recycled box. Qualifications pertaining to an environmental claim (and all claims) should be clear, prominent and understandable.

Q: Do the Green Guides constitute new law, and are they enforceable?

A: No, the Green Guides are not new advertising laws or regulations; they are industry guides that are technically the FTC's administrative interpretations of the applicable law. The guides provide general principles and examples that apply to all green claims. They also describe the basic elements necessary for adequate substantiation of claims. Although the guides do not have the force of law, the commission can take enforcement action against an offending marketer under Section 5 of the FTC Act—for claims inconsistent with the guides. To enforce the law, the FTC must prove that the advertising practice is unfair or deceptive. In recent years, state and local governments also have relied on the Green Guides for direction and standards as to enforcement.

Q: When is the new, revised Green Guide due to be issued?

A: Any month now. In the meantime, there are useful documents at, including "Facts for Business: Environmental Marketing Claims" and "Facts for Consumers: Sorting Out ‘Green' Advertising Claims." The latter cautions the consumer (and thus indirectly, the marketer) to be skeptical about vague claims that may sound warm and fuzzy but offer little information, such as a picture of the globe surrounded by the words Earth Smart. This logo is not helpful, and also may be misleading—given that all products and packaging have some negative environmental impact.

Susan D. Brienza is an attorney in the Denver office of the national law firm Patton Boggs. She specializes in regulatory compliance, food and drug law (including DSHEA), USDA and FTC law. Contact her at [email protected]

This column is not meant, and should not be construed, as a legal opinion or legal advice, but rather is intended to provide basic principles and some examples as to various aspects of FDA and FTC law.

Natural Foods Merchandiser volume XXVIII/number 10/p. 66,68

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