Greenwashers, Beware: FTC Updating Its "Green Guides"

May 12, 2010

It ain't easy selling green. Later this year, the Federal Trade Commission is expected to release an updated version of its Green Guides (Guides for the Use of Environmental Marketing Claims) — a useful resource for evaluating marketing claims of environmental certification or eco-friendliness.

The goal of the Green Guides (which were last updated in 1998) is to "help marketers avoid making environmental claims that are unfair or deceptive under Section 5 of the FTC Act." The 2010 update is expected to feature new guidance for marketing carbon offsets and renewable energy certificates, green packaging, textiles, building products, and buildings (topics which were the focus of FTC workshops in 2007 and 2008).

Marketers touting environmental benefits definitely need to pay attention to these FTC regulations. The agency "has brought law enforcement actions targeting allegedly false or unsubstantiated environmental claims. Because the Green Guides are administrative interpretations of the law, they do not have the force and effect of law and they are not independently enforceable. However, if a marketer makes claims that are inconsistent with the Guides, the FTC can take action under Section 5 of the FTC Act, which prohibits unfair or deceptive practices."

One way to put the Green Guides to work in your region is to compare locally advertised environmental claims to the regulatory requirements: Do they measure up? Where substantiation seems questionable or lacking, press vendors, manufacturers, and marketers for more information.

One intriguing issue is whether the Green Guides update will make it easier for FTC to challenge corporate "environmental image" advertising — that is, general claims by companies that their practices are environmentally friendly, socially responsible, or sustainable. This topic was explored in depth in a recent Penn State Environmental Law Review article, "Thinking Green or Scheming Green," by JD/MBA candidate Joseph J. Swartz.

In a post to the blog of the Arnold & Porter law firm, attorneys Randy Shaheen (202-942-5734) and Danielle Sims (202-942-5827) expanded this discussion and added more context.