In highly competitive product categories, the race is always on to claim “the best”.  And product manufacturers who make a great product and who can substantiate “best” claims should be able to make them loudly and proudly.

In a recent NAD case, T-Mobile was found to have taken the proactive but needed step of discontinuing its “America’s Largest 4G Network” claim.  It could make this claim and had made this claim for some time but the size of competing networks grew.  T-Mobile nimbly reported it was focusing in a new campaign on the speed and dependability of its network.  But not soon enough to avoid the NAD challenge by AT&T.

The problem is the burden of making such a claim is you need to continually watch it.  An unqualified “best” or “largest” or “highest” (or maybe any “-est”) claim the NAD repeatedly finds means you are trumpeting superiority compared to all or at least a significant majority of products in the class.  The requirements are not hard and fast but a good rule of thumb is testing against 90 percent of the product category based on sales (likely unit rather than dollar sales).  Of course sometimes a best claim can be a puff (e.g. “Best Buy”) but it is always a risk to assume your claim is not a claim at all.

Even when you get past this high hurdle, the claim needs to be substantiated on an ongoing basis.  If there are new products introduced into the product class or exisiting products are improved, these need to be tested.  And if your “best” claim appears on product, and somebody builds a better mousetrap, you may be confronted with revising labeling and packaging off schedule.  Of course sometimes a best claim can be a puff (e.g. “Best Buy”) but it is always a risk to assume your claim is not a claim at all.

Another example of the need to monitor is a recent case where NAD  recommended Church and Dwight discontinue its claim that it’s First Response digital ovulation test is the “First and Only” test to predict ovulation using an adaptive algorithm based on a woman’s individual hormone level.  A competing maker of Clearblue Easy said it used a similar mechanism, even though it had not advertised this fact. NAD noted that a “first and only” claim necessitates the advertiser having some information about how competing products operate, which may or may not be readily available, so while it did not fault Church and Dwight for making the claim originally, it recommended discontinuing it going forward.

So before committing to a “best” or “only” claim, make sure you have resources in place to continue to monitor the accuracy of the claim.  Your competitors certainly will and like AT&T and others know where to find NAD at their new address to bring a challenge.

KermitIt just got a little easier being green.  Yesterday, the FTC announced the final version of its revised Green Guides.  And as one might expect, the FTC did not just recycle its prior draft but made some important revisions, based in part upon many of the approximately 340 unique comments it received.

Jim Kohm, Enforcement Division Director from the FTC’s Bureau of Consumer Protection, unveiled the draft revised Green Guides two years ago at the NAD conference and had the honor of unveiling the final guides at this year’s NAD conference.  We’ll blog later in more detail on some of the issues presented by the new Guides, but some of the key takeaways from Mr. Kohm’s presentation are set out below.

  • The FTC is not looking to play “gotcha” with the guides for companies that are legitimately trying to advertise in good faith and stay on the right side of the line.  If you inadvertently step over the line they will try to work with you to bring you back over.
  • The FTC does not set environmental policy and their purpose is not to promote or denigrate green claims.  Instead, their goal is to avoid having the field polluted by deception and to avert the possibility that consumers may stop listening to all green claims because of deception.

So what are some of the key differences between the draft guidelines and the final guides?    We summarize a few important ones below.

General environmental claims – If you advertise that your product has an overall benefit to the environment because of a specific attribute (e.g. you’ve switched from one type of material to another) you should analyze any trade-offs that resulted from the switch to make sure that there is an overall benefit.  Whether you need to do a more extensive lifecycle analysis depends in part upon the nature of the claim and the trade-off.

Carbon Offsets – No real changes here but Mr. Kohm emphasized that the FTC only addressed regulatory additionality (whether you were required by law or regulation to take an action) because there is still a great deal of discussion and disagreement within the environmental community about other types of additionality.

Seals and Certificates of Approval – The final guides clarify when you have to disclose a material connection to the certifying organization, particularly with regard to trade associations that certify members’ environmental claims.  If the trade association standards were developed and maintained by a voluntary consensus standard body and applied by an independent auditor then there is no disclosure requirement, as the standards are not “biased” and consumers are presumed to assume that the certification was “paid for” whether through trade association membership or by direct payment to a third party certifying organization.

The requirement that you qualify any claim that a green seal implies, such as general environmental superiority or ‘no impact on the environment,’ continues.  This qualification should be part of the seal itself or be in a disclosure that is in close proximity to the seal (i.e. no reference to online disclosures for claims that appear in brick and mortar stores.)  Of course, there’s an exception to every rule, or “guide” in this case.  If you are using a seal that evaluates products on attributes that are too numerous to readily enumerate the final guides say you can comply with the disclosure requirement by including the disclaimer: “Virtually all products impact the environment.  For details on which attributes we evaluated go to www._________”.

Compostable and Biodegradable – There is not much change here.  Mr. Kohm did address some of the new plastics that breakdown more readily.  With regard to compostability, if a product using new plastic technology will compost only in very specific commercial facilities that are not readily available to most consumers then this must be disclosed.  With regard to biodegradability in landfills, he cautioned against relying on ASTM standards that may suggest that such plastic products will biodegrade.  Such standards, he said, do not generally reflect typical landfill conditions.  (Some landfills are becoming more “aerobic” and thus conducive to biodegrading but are also not readily accessible to most consumers and so a disclaimer would be in order.)

“Free Of” claims – “De minimis” has been replaced by “trace amount”  So if a product contains only a trace amount of a substance, this trace amount does not cause the harm typically associated with that substance and you didn’t add it intentionally to the product you can say “free of.”  Except that it may be misleading to say that your product is “free of” a substance that has never been associated with that product category (it’s okay if your product never had it as long as other products in the category did.)

Nontoxic  – Pets are people too or maybe just part of the environment.  In either case the FTC has clarified that general nontoxic claims also apply to our various four-legged, winged and finned friends.

Recyclable – The final guides modified the proposed three-step analysis for what type of recyclable claim you can make.  A claim of recyclable should be qualified when facilities are not available to at least 60% of the consumers or communities where the product is sold.  After that the former strict percentage tests have been abandoned for a sliding scale.  If facilities are available to only a few consumers the qualifying language should state that the product is recyclable in only a few communities.  If it is somewhere in between, then you can use the qualifier that “this product may be recyclable in your area.”

Claims That Were Not Addressed – The final guides, like the draft, do not address the use of “natural” or “sustainable.”  However, the FTC cautioned at a press conference yesterday that this does not mean that they would not bring an enforcement action based upon the use of those claims in an appropriate case.

The Future – The FTC is unlikely to do a complete review of the revised guides for another ten years.  However, they could potentially make minor modifications, particularly if they obtain suitable information to help them provide guidance in certain areas.  Mr. Kohm mentioned three such potential areas where the Commission would welcome additonal information: how to define recycled content with respect to preconsumer content, other types of additionality for offset claims and the use of sustainable as a “green claim.”

Emerson once wrote “a few strong instincts and a few plain rules suffice us.”   Thoreau noted that “any fool can make a rule, and any fool will mind it.”  According to General MacArthur, “rules are mostly made to be broken and are too often for the lazy to hide behind.”  The sports pages are filled with violations of “unwritten rules” ( See, Schiano, Greg)  or NFL replacement referees who do not seem to know the rules.  Allen Iverson once questioned the relevance of practice. What does all this have to do with advertising law?  Well, the FTC announced last week significant revisions to the Rules of Practice that govern investigations conducted by the agency (Part 2 of the Agency’s Rules of Practice) as well as attorney misconduct (Part 4 of the Agency’s Rules of Practice).  For those dealing with the agency, it’s important to know the rules.

The agency first circulated proposed revisions to the Rules in January of this year and accepted public comments on those revisions through March.  On September, 21, 2012, the agency issued the final Rules.

According to the FTC the purpose of the revisions to the Part 2 Rules was to:

  • Expedite and streamline the rules;
  • Improve fairness and openness in all FTC investigations;
  • Add structure to the agency’s investigatory process by consolidating related provisions; and
  • Underscore the importance of cooperation between recipients of compulsory process and FTC staff.

Important Revisions to the Part 2 Rules include:

  • Rule 2.6 – clarifies the ability of the FTC to disclose the existence of an investigation to third parties when necessary to advance the investigation; and sets forth the right of subjects of an investigation to be told the purpose and scope of the investigation.
  • Rule 2.7(i) – sets forth staff’s authority to inspect, copy, or sample documents, materials, and electronic media. Note, it will be important to see what the FTC does with the ability to “sample” electronic media.  The ability of the FTC to sample a company’s electronic database could be problematic.
  • Rule 2.7(h) – clarifies the ability of the agency to obtain an investigational hearing of an entity analogous to Fed. R. Civ. P. 30(b) 6.
  • Rule 2.7(j) – specifies that the means by which ESI (electronically stored information) should be produced is to be dictated by instructions provided by FTC staff.
  • Rule 2.7(k) – requires a mandatory meet and confer within 14 days of after receipt of process between the recipients of compulsory process and FTC Staff including discussions of ESI and records retention.   The rule contemplates counsel having business people available at the meet and confer to discuss ESI and production issues.  The rule requires that any issues that might be the subject of a motion to quash be raised during the meet and confer conference.
  • Rule 2.7 (l) – conditions the ability to receive extensions of the time within which to comply on demonstrated progress towards compliance.
  • Rule 2.9 – prohibits a witness in an investigational hearing from consulting with counsel while a question is pending except with regard to questions of privilege.
  • Rule 2.10 – removes the prior two step process for resolving petitions to quash compulsory process wherein a single designated commissioner would rule on the petition and that decision could then be reviewed by the full Commission.  The full Commission will now rule on such petitions and will do so within 30 days of the petition’s filing.  A 5,000 page word limit for the petition also now is set out. As the Commission never seems to grant these petitions, some would ask why bother changing the rules.
  • Rule 2.11 – sets forth the requirements for logging information withheld on the basis of privilege.  This rule also sets out the agency’s position (which follows Fed.R. Evid. 502)  that the inadvertent production of privileged material will not constitute a waiver of the privilege if reasonable steps were taken to prevent disclosure and the holder of the privilege takes reasonable steps to rectify the error.  The rule requires staff upon learning of an inadvertent disclosure to honor the claim of privilege.
  • Rule 2.13 – (this one if for you antitrusters) allows the Office of General Counsel to initiate an action in a district court to enforce compulsory process issued in connection with a merger review involving a Second Request without the need to obtain a Commission vote to do so.
  • Rule 2.14 – provides a new protection for parties subject to a document preservation obligation.  If the party does not receive any written communication from the agency within the prior 12 months concerning the investigation, the party no longer is under an obligation to preserve documents.

The agency also revised its attorney disciplinary procedures for attorneys appearing before the agency.  Importantly (ironically), these procedures do not apply to FTC staff.  While applicable across the agency, the changes appear to have been driven by concerns about obstructionist tactics in investigations before the Bureau of Competition.

The changes to the Part 4.1 include:

  • Providing additional guidance regarding the type of conduct that may warrant disciplinary action;
  • Establishing a framework for evaluating and adjudicating allegations of misconduct; and
  • Introducing a process of the issuance of attorney reprimands that provides for issuance without an evidentiary hearing in appropriate circumstances.

Commissioner Rosch (a/k/a The Great Dissenter) dissented from the proposed changes for reasons he first voiced when the proposed changes were announced in January.  Commissioner Rosch objected to the revised rules not requiring (a) the use of compulsory process in all investigations and (b) regular reporting by the staff to the Commission on all investigations.

As with many rules, the important thing may not be what is in the rules themselves but rather how the rules are used or implemented.  For that, we’ll have to wait and see.

What do The Daily Show, The Colbert Report, and the Consumer Financial Protection Bureau (“CFPB”) have in common?  Hopefully a sense of humor, but at least one Web designer.

According to a recent Washington Post story, “Who leaves Comedy Central to work for the government?,” a senior Web designer at Comedy Central, is on “a team of Web developers, information architects, and digital strategists who want to revolutionize the very way that Washington works.”

Headed by Cordray, the CFPB has been actively recruiting and attracting young staffers from across the country with varied experiences.  “If Stephen Colbert and Jon Stewart are now the guiding lights for the young generation now “staring up at fading Obama posters”…then the Consumer Financial Protection Bureau has recruited straight from the source,” the Washington Post writes.

According to the Post, the CFPB has “become a mecca for the young, creative do-gooders who still believe that new technology and the right open-source ethos can fulfill the president’s promise of a changed Washington.”

The CFPB also has become known as a “Beltway Startup” with access to close to a half billion dollar budget and over 1,000 employees.  Now at the start of its second year, the CFPB’s own list of accomplishments includes enforcement actions, rulemakings in the areas of nonbank supervision and examination, mortgage servicer reform, and shining a light on financial services for servicemembers and seniors.

The article discusses the CFPB’s use of a “classic start-up style,” and attributes the CFPB’s “beta” projects to an approach that encourages staff to work quickly and make corrections later.  The approach, pioneered by entrepreneur Eric Ries, is “to create prototypes quickly, then modify them afterward through intensive customer feedback.”

The approach is as good an explanation as any for the Bureau’s practice of often placing proposals on its website without often simultaneously utilizing the Federal Register and the notice and comment process provided for in the Administrative Procedures Act.  Instead, Bureau proposals like sample disclosures for student loans, mortgage servicers, and other initiatives like a draft Strategic Plan seem to sometimes only exist on the Web.  And, comments from the public sometimes are limited to the arbitrary length of intake forms on CFPB website.  Nonetheless, the CFPB has been placing pressure on companies to use some of these draft disclosures – such as the Know Before You Owe:  Student Loan disclosure form – before they are finalized.

Beneath the Bureau’s blog posts, Twitter feed, beta forms, online calculators, complaint tools, interactive FAQs about financial products and services, and other digital tools is a concerted and deliberate focus on systemic change.  The CFPB website provides a window into an area that matters very much but is easily underestimated.  For affected companies and other stakeholders the “beta” approaches and CFPB website is no laughing matter.

Next week marks the annual ASRC/CBBB Conferences. Numerous in-house and outside counsel, along with well-known regulators, will present during the NAD, CARU and ERSP Conferences in New York City.

This includes our very own Amy Mudge who will speak about natural claims at the NAD Conference on Monday October 1, while on October 3, Randy Shaheen will address the CARU Conference regarding regulation of food advertising. Jonathan Pompan will present on lead generation at the ERSP Summit on October 3.

To celebrate the conferences, Venable is hosting a cocktail reception at PJ Clarke’s On the Hudson on Tuesday, October 2, 2012 from 6:00 p.m. – 8:00 p.m. EDT.

Won’t you join us? Please RSVP so we know to expect you. See you there!

Reception Hosts: 

Jeffrey D. Knowles
Leonard L. Gordon
Amy Ralph Mudge
Randal M. Shaheen
Jonathan L. Pompan

Location:

PJ Clarke’s On The Hudson
Four World Financial Center
New York, NY 10281
212.285.1500

RSVP:

Please RSVP by Monday, October 1 to:
Angie Pitha
202.344.4286
APitha@Venable.com

The short answer according to longstanding FTC guidance is 6 months from launch, with a little extra time built in if you do a limited test launch first.  This rule has been on the books a long time but not actively enforced.  The FTC likely has better things to do with its resources than protecting those who may be moved to purchase based on a product being new to market when it has been around awhile.

But “new” claims are often examined at the NAD.  They recently brought a monitoring case against Tiffany & Co.  A monitoring case is one NAD brings itself based on its review of ads not based on a challenger or consumer starting an action.  Here the NAD looked at claims for Rubedo jewelry that Tiffany had created a “new jeweler’s metal” combining primarily gold, silver and copper for a pink toned metal.  The NAD inquired as to whether this really was new and even if so if it implied a new element in the periodic table.  Tiffany’s had applied to patent its new metal and had advertised as new for less than 6 months.  Not messing around, Tiffany submitted an expert report from an MIT professor opining the metal was a new precious metal alloy development.  NAD concluded the product was in fact “new”.  And answered its own question that consumers would not reasonably interpret the claim that a new element had been found but that “new” would be understood as a new metal alloy.  This is one of the rare monitoring cases where NAD rendered a decision for the advertiser.  NAD did appreciate that Tiffany had already discontinued a different claim that Rubedo contained the riches of gold and the brilliance of silver as it was concerned this might overstate its value.  NAD administratively closed this portion of the case.

So while many do not view being challenged by the NAD with rose colored glasses, the decision was certainly in the pink (or the Rubedo) for Tiffany.

Listen up, all you fans of consumer testimonials!  The FTC has just confirmed that a “results will vary”-style disclaimer isn’t likely to disclaim anything in the eyes of a consumer. Instead, marketers must consider the “net impression” their testimonials convey.

A subsidiary of diet plan marketer Medifast Inc. agreed to a $3.7 million settlement with the FTC stemming from charges that it violated a previous settlement order entered into in 1992.

In order to make sense of the settlement, we’ll need to rewind briefly to 1992. You might recall that at the time, Sir-Mix-a-Lot had a number one single extolling the virtues of a baby [who] got back. Meanwhile, Medifast (apparently not sharing Sir-Mix-a-Lot’s views on the human form) encouraged consumers to lose weight by participating in their low-calorie meal substitute program. The FTC alleged that Medifast’ s weight-loss claims were unsupported, so the 1992 settlement order barred Medifast from making any future unsupported claims about a user’s success in achieving or maintaining weight loss.

But according to the FTC, since about 2009, Medifast started running more unsupported weight loss ads that touted its low-calorie meal substitutes including the “5 and 1” plan. The company allegedly used radio, television, Internet, and print advertisements to tell consumers that by using Medifast programs and products, they could lose two to five pounds each week. Medifast mostly made these representations through the use of consumer testimonials.

MedifastOne ad stated: “Why Medifast? Three great reasons. Cynthia Lujan lost 73 lbs on Medifast! Cindy Daniels lost 43 lbs on Medifast! Jennifer Lilley lost 70 lbs on Medifast! You can lose up to 2 to 5 pounds per week on Medifast.”

The complaint alleged that Medifast advertised that these consumer endorsers’ experiences were typical and all consumers would lose more than 30 pounds by using the product. Though Medifast used a disclaimer at the bottom of the ad that stated “Results will vary” the FTC said this wasn’t sufficient to counteract the “net impression” consumers received from the ad, noting that the disclaimer appeared in small type or was spoken quickly. (and because it seems we can almost never blog without mentioning “up to” it’s worth noting that the FTC also interpreted the “up to 2-5 pounds per week claims as one that consumers would be likely to achieve ((though they did not include the “all or almost all” language used in the recent windows consent orders.))

The Medifast settlement is also important for another reason: it details the sort of rigorous clinical test the FTC wants to see for low calorie meal replacement weight loss claims. Under the settlement order, Medifast will need at least one “adequate and well-controlled human clinical study of the low-calorie meal replacement program” or a study that follows the detailed protocol laid out in the settlement in order to support future weight loss claims.

The protocol listed in the settlement is meticulous. For example, the weight loss study must identify primary and secondary outcome measurements and if a subject drops out of the program after two weeks (for a reason other than a change of residence or medical reason) the subject’s last recorded weight must be used as his or her ending weight for the study’s data analysis.

The FTC also specified duration requirements for weight-loss studies: if the advertiser’s representation will relate to weight loss, the study must cover a period of at least 16 weeks; if the advertiser’s representation will relate to weight maintenance, the study must cover a period of at least 52 weeks.

So what does this mean for all advertisers and marketers? First of all, nobody should place much faith on a “results will vary” disclaimer, particularly one that is not very large and prominent– the FTC’s results on that method will assuredly not likely vary in future enforcement actions. Secondly, the FTC appears to have laid down a marker for substantiation of weight loss claims for low calorie meal replacement products.  With regard to other types of weight loss products the FTC in the past has sometimes suggested that two well-controlled studies might be required.  Thus it may be too soon to tell whether the one clinical study requirement and the study duration requirements in the order are intended to apply to other weight loss products as well.

Product manufacturers always want to tout new or improved product benefits.  Why innovate if you can’t advertise it?  NAD agrees but reminds advertisers in a recent case that when calling out product comparative benefits, you need to tell consumers the basis of the comparison.  In this case, the claim being “2X Concentrated” but the question that needed answered was “than what”?

Rug Doctor made a prior generation cleaning solution sold with its rental carpet cleaning systems called Spot Blok.  For years this was advertised as twice as concentrated as competing brands.  In 2008, Rug Doctor launched a new product, Oxy Steam Carpet Cleaner, that was, in fact, twice as concentrated as its Spot Blok.  It did not advertise this benefit, however.  Rug Doctor recently refreshed the Oxy Steam product label to add “2X Concentrated”.

Bissell, the challenger, asserted that this told consumers Rug Doctor had launched a new and improved Oxy Steam Carpet Cleaner that was more concentrated than its prior version of Oxy Steam.  Rug Doctor said it was just calling out a truthful claim – that Oxy Steam was twice as concentrated as its prior braded Spot Blok.  Bissell said the 2X concentrated claim was akin to a “new” claim that you can only use within 6 months of a product launch and because Rug Doctor did not call out its increased concentration when it originally launched its current generation product that it could not do so now.  NAD did not agree that the 2X concentrated claim was just like “new”.  It agreed that Rug Doctor could call out this benefit but needed to make clear it was more concentrated than Spot Blok so as not to convey the unsubstantiated message that Oxy Steam Carpet Cleaning had been further concentrated.

This serves as a good lesson for marketers wanted to advertise product improvements to take a hard look at whether your basis of comparison is obvious and only subject to one interpretation or whether consumers need to be given more information to understand the “than what”.

On September 7, 2012, the FDA issued a Warning Letter to Lancȏme USA, a subsidiary of L’Oreal, advising that claims made on Lancȏme’s website for a series of products sold under names containing “Youth Activating” and “Regenerating and Reconstructing” caused the products to be drugs under the Food, Drug, and Cosmetic Act. (the FDA sometimes considers websites to be “labeling” or, alternatively, evidence of intended use)  In its letter the FDA stated that the listed claims were only “some of the claims” the FDA observed on Lancȏme’s website that were problematic. The FDA gave Lancȏme the standard 15-business-day period within which to respond to the Warning Letter.


Lancome2Of note here is that the Warning Letter was issued by the FDA’s Center for Food Safety and Applied Nutrition (CFSAN) and not one of the agency’s Regional Field Offices, which have been responsible for most of the Warning Letters issued to cosmetic companies whose claims had crossed over what is popularly called the “drug/cosmetic line,” thereby rendering the products drugs that were unlawfully on the market. The significance of this Lancȏme Warning Letter, beyond the specific claims issues that it raises, is the fact that the letter was issued directly by CFSAN, where the Office of Cosmetics and Colors, which has primary regulatory responsibility for cosmetic products, is located. This could indicate that the Office of Cosmetics and Colors, which has been the subject of Congressional criticism because of its inactivity in recent years, will now become more active. A second Warning Letter, issued to Greek Island Labs on September 7, 2012 as well, suggests we should expect greater activity.

It will probably take time before we can be certain whether this is a single Warning Letter or whether the Office of Cosmetics and Colors is positioning itself to become more active in the claims area – taking on the role it took back in the late 1980s, when the Office was responsible for sending over thirty Warning Letters to larger companies, advising them that their marketing claims transformed their products into illegal drugs. It is important to keep in mind that, in addition to the Warning Letters in the late 1980s, the FDA at that time sent inspectors out to make rounds to all of the major cosmetic companies to “encourage them” to drop the claims. There were threatened seizures at that time and at least one customs detention. This activity was the genesis of the FDA’s current import alert for “anti-aging” products.

Because federal action has been shown to encourage consumer class action lawsuits, we recommend that organizations review their claims, continue to be vigilant, and watch to see whether the Lancȏme letter will be a singular incident or an indication of a new initiative on the part of the FDA.

The Lancȏme website claims identified in the Warning Letter include the following:

Génifique Youth Activating Concentrate, Génifique Eye Youth Activating Eye Concentrate, and Génifique Cream Serum Youth Activating Cream Serum:

  • “[B]oosts the activity of genes and stimulates the production of youth proteins.”

Absolue Precious Cells Advanced Regenerating and Reconstructing Cream SPF 15 Sunscreen:

  • “A powerful combination of unique ingredients – Reconstruction Complex and Pro-Xylane™, a patented scientific innovation – has been shown to improve the condition around the stem cells and stimulate cell regeneration to reconstruct skin to a denser quality.”
  • “See significant deep wrinkle reduction in UV damaged skin, clinically proven.”

Rénergie Microlift Eye R.A.R.E.™ Intense Repositioning Eye Lifter:

  • “Immediate lifting, lasting repositioning. Inspired by eye-lifting surgical techniques…helps recreate a younger, lifted look in the delicate eye area.”
  • “[U]nique R.A.R.E. oligopeptide helps to re-bundle collagen.”

UntitledThose of you who are students of history will remember that a draft of the FTC’s revised Green Guides came out almost two years ago, October 6, 2010 to be precise.  Just prior to their release the FTC provided a preview at the NAD conference in New York.  Well is history about to repeat itself?  This year’s NAD conference is being held on October 1-2 in New York and the NAD has just announced the addition of a new panel on its opening day.  That panel is called “Environmental Marketing Claims and FTC’s Green Guides” and the sole panelist is Jim Kohm, the FTC’s Associate Director of Enforcement for the Consumer Protection Bureau and guardian of all things green at the FTC.  (The panel is moderated by the NAD’s own David Mallen.)  So does this mean that a final version of the Revised Green Guides is about to be released?  One would think so.  Stay tuned; or better yet jump in your Prius and head to New York.