Green claims

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Last week, New York Attorney General Letitia James filed a lawsuit against the world’s largest beef producer JBS USA Food Company and JBS USA Food Company Holdings (JBS Group). The lawsuit challenges the company’s claim that it will achieve net zero greenhouse emissions by 2040 despite its documented plans to increase production and lack of supporting evidence that the aspirational claim is attainable.

Generally, achieving “net zero” means negating the amount of greenhouse gases produced by activity by reducing emissions and implementing methods of absorbing carbon dioxide from the atmosphere (also known as “offsetting”). According to the complaint, there are no proven agricultural practices that would allow the JBS Group to reduce its greenhouse gas emissions to net zero at the company’s current scale, and offsetting the emissions would be a “costly undertaking of unprecedented degree.”Continue Reading New York Attorney General Says JBS Net Zero Claims Are Greenwashing

Is a product recyclable if it is made of recyclable materials? Or is it recyclable when it can be recycled by waste management facilities? Last month, the United States District Court for the Northern District of California attempted to tackle these questions in response to a motion to dismiss in Della v. Colgate.

The plaintiff alleged that Colgate-Palmolive Company engaged in false and misleading advertising claims about the recyclability of its toothpaste tubes with claims like “First of Its Kind Recyclable Tube” and images of the universal recycling symbol. The plaintiffs claimed these statements were misleading because the products cannot be recycled at most waste management facilities. Colgate argued that since the tube is made from recyclable material—specifically a material that can be recycled at most facilities—the “recyclable” claim was not misleading.Continue Reading California Court Cites FTC Green Guides, Allowing Plaintiff’s Challenge of Colgate Toothpaste Tubes “Recyclable” Claims to Proceed

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.Continue Reading FTC Seeks Public Comment on Possible Green Guides Revisions

We’re excited to plug an event that our client Made Safe is hosting next week (November 8) in New York City with the Good Housekeeping Institute. Made Safe, which works with companies to certify that their products do not contain ingredients known or suspected to harm human health, is partnering with Good Housekeeping for a…

Seal of the Federal Trade CommissionA change in administration inevitably raises questions regarding the priorities and direction of federal agencies. To help set the record straight, Lesley Fair, a Senior Attorney with the Federal Trade Commission’s (FTC or Commission), Bureau of Consumer Protection, reminded us during last week’s NAD Annual Conference that the FTC has kept quite busy over the last year or so, with numerous enforcement cases arising out of the FTC’s Bureau of Consumer Protection. Ms. Fair also shared her views regarding the FTC’s key enforcement priorities that affect advertisers and marketers. Perhaps unsurprisingly, these priority areas generally relate to (i) advertising substantiation; (ii) use of social media, endorsements, and consumer reviews; (iii) matters involving privacy and data security; and (iv) allegations of financial deception. While such topics warrant serious consideration and attention for advertisers, one would be remiss in failing to mention that, in typical Ms. Fair fashion, she discussed these issues in a manner that not only kept the audience engaged, but largely entertained.

With respect to advertising substantiation, Ms. Fair took the opportunity to remind the audience that despite our obsession with smartphones—and our assumption that they can do almost anything except fold our laundry—the FTC will carefully scrutinize advertisers’ claims about their products, including health apps for smartphones, to ensure they are adequately substantiated. As an example, Ms. Fair mentioned the Commission’s January 2017 Settlement with Breathometer, Inc. and Charles Michael Yim in which the FTC alleged that marketers of two app-supported smartphone accessories, marketed to accurately measure consumers’ blood alcohol content (BAC), failed to adequately test the accuracy of the app and failed to notify customers that the app regularly understated BAC levels. In another smartphone settlement from December 2016, FTC v. Aura Labs, Inc. and Ryan Archdeacon, the FTC alleged that the marketer’s blood pressure app lacked reliable testing, and that the app’s readings were significantly less accurate than those taken with a traditional blood pressure cuff. In both of these cases, Ms. Fair suggested that FTC seemed particularly concerned due to potential safety issues arising from the lack of proper testing, especially where an intoxicated driver might get behind a wheel, or where a consumer may think his/her blood pressure does not present a health risk. These cases serve as a reminder that the FTC will evaluate substantiation with an especially critical eye where advertisers make health and safety-related claims.Continue Reading What’s the Federal Trade Commission Been Up to Recently?

paint cansAs we previously blogged, the FTC went after several paint companies (Benjamin Moore, ICP, YOLO and Imperial Paints) for advertising that their paints were VOC-free when that claim was true only before colors were added to the paint. Time and technology march on, and several manufacturers thought they had solved this problem, proclaiming boldly that their colored paint offers “zero emissions,” “zero VOCs” and “no harsh fumes” with lots of pictures of cute babies and/or pregnant women.
Continue Reading FTC’s Warning on Green Paint Claims Required a Second Coat

It’s hard to know where to begin when describing all the claims that were at issue in a recent NAD proceeding involving a challenge by Energizer to claims made by LEI Electronics (“LEI”) for its Eco Alkalines brand batteries.  It’s safe to say, however, that if you’re looking for an easy way to recharge your power over the Federal Trade Commission’s (“FTC”) Green Guide requirements, you could read NAD’s decision in this matter and feel pretty juiced up.

Energizer’s challenge included alleged claims that its competitor’s batteries were eco-responsible; that they were “carbon neutral”; that they were recyclable and made from recycled materials; that they are non-toxic; that they have no environmental impact; and that they are biodegradable. (See what we mean?)  Oh, and there were some actual performance claims thrown into the challenge as well.Continue Reading NAD Goes Green Just Before St. Patrick’s Day

Given the increasingly national scope of commerce, consumer products companies find it difficult to deal with issues regulated at the state level, particularly if states adopt differing and sometimes conflicting solutions to a common problem.  As a result, industry often turns to the federal government for help in creating a common federal solution.  The FTC’s Green Guides were originally born out of concern for conflicting state regulation of claims such as recyclables, while today manufacturers are concerned about efforts by states such as Vermont to regulate GMOs in food products.  Recently industry participants utilizing microbeads also appeared to have successfully supplanted numerous state regulations for a uniform federal regulation. [Microbeads, by the way, are plastic microspheres that are commonly used in personal care products.  Because they are so small they tend to end up back into the ecosystem, raising concerns about pollution.]

The Microbead-Free Waters Act of 2015, imposes a ban on manufacturing products with the beads as of July 1, 2017, followed by product-specific distribution bans in 2018 and 2019. Additionally, as industry participants had hoped, the Act also preempts state laws but the statute’s specific wording cracks the door to the enforcement of earlier-in-time state and local microbead restrictions.

The Act addresses microbeads according to the following schedule:
Continue Reading Crying for Federal Micromanagement — Complying with Conflicting Federal, State and Local Microbead Laws has Personal Care Products Companies in Need of Relief