At its December 14, 2022 open meeting, the Federal Trade Commission announced it would publish a notice in the Federal Register seeking comment on potential updates or revisions to its existing Green Guides. The Green Guides are the agency’s guidance document intended to “help marketers avoid making environmental marketing claims that are unfair or deceptive under Section 5 of the FTC Act.” Earlier, the FTC had indicated that the guides would be revised this year, but that has apparently slipped to next year.

The pre-publication version of the notice, which will be published later in the Federal Register, indicates that the FTC is requesting comments on all aspects of the Green Guides, and in it the agency notes that in the 10 years since the last update, increased attention to environmental concerns has resulted in “the proliferation of environmental benefit claims [which] includes claims not currently addressed in the Guides.” In addition, the FTC wants to ensure that the guides respond to changes in consumer perception.

The notice covers most issues raised in the 2012 guides, and raises questions regarding several specific types of claims:

  1. Compostable – The agency asks whether the guidance for this claim should be revised to define “substantial majority” consistent with the “recyclable” section.
  2. Degradable – The agency asks whether an alternative time frame for decomposition for all product categories or any individual product category should be revised, and whether the FTC should change its guidance in light of its ECM Biofilms decision.
  3. Recyclable – The agency asks whether the 60% threshold should be updated, and whether unqualified claims guidance should consider that some items are collected for recycling but not ultimately recycled because of outside factors.
  4. Recycled Content – The agency recognizes that the guides currently allow recycled content claims only for materials recovered or otherwise diverted from the solid waste stream and asks whether its recycled content guidance should be updated.
  5. “Organic” and “Sustainable” – The agency asks whether it should reconsider issuing any guidance on these terms.
  6. Carbon Offsets – The agency asks whether any specific claims related to carbon offsets should be added to the guides, what evidence there is of deceptive climate change claims, and what consumer research is available on “net zero,” “carbon neutral,” “low carbon,” or “carbon negative” claims.
  7. Energy Use/Energy Efficiency – The agency asks whether it should add guidance on energy efficiency claims, for example, for products like electric vehicles or home-related products.
  8. Ozone-Safe/Ozone-Friendly – The agency asks whether the guidance should be removed or revised because it lists examples of specific ozone-depleting substances that are now otherwise banned by EPA and asks how the guidance for such claims should be updated.

Finally, we note that the FTC asked for comments on whether it should consider a formal rulemaking process with respect to unfair environmental claims, and requested information regarding potential conflicts with other federal, state, or local regulations.

We highly recommend affected businesses consider commenting on the development of this guidance. The notice will be formally published in the Federal Register in approximately mid-January 2023. After publication, there will be a 60-day public comment period.

Venable’s team is available to answer any questions you may have about the FTC’s Green Guides and the public comment process. Please feel free to contact us at any time.

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