Commenters Assert Proposed Green Guides Restrict Information Consumers Want to Know

If you were thinking of commenting on the FTC's proposed revision of the Green Guides, put the pen down. The comment period officially ended last month. The FTC received over 300 public comments. Many of the comments have focused on the FTC's position that general claims such as "green" or "environmentally friendly" cannot be used unless qualified. The proposed revised Guides strengthen the FTC's position based on consumer perception research that, unless qualified, such claims convey broad sweeping environmental benefits and cannot be used. By way of example, the Washington Legal Foundation (WLF), a non-profit public interest law and policy center based in Washington, D.C. that advocates for free-market policies and the protection of free speech rights of the business community, filed formal comments. WLF believes that the FTC's proposed ban on all unqualified general environmental claims is a disservice to consumers and an infringement of First Amendment rights protecting commercial speech. The FTC based its prohibition of unqualified claims on the results of a consumer perception study that asked participating consumers whether they thought a specific product advertised as "green" or "eco-friendly" possessed the following attributes: (1) recyclable; (2) made from recycled materials; (3) biodegradable; (4) compostable; (5) made with renewable energy; and (6) made with renewable materials. Because a significant number of consumers responded that they believed that a product advertised as "green" or "eco-friendly" possessed one or more of those attributes, the FTC concluded that many consumers are misled by unqualified general environmental claims. WLF contends that, in their experience, a majority of consumers are not readily familiar with the meaning of these terms and had the terms not been provided, only a small fraction would have volunteered those attributes on their own. Thus, WLF believes that the results of the FTC's study are an unsound basis for a blanket prohibition against unqualified claims. To the contrary, WLF believes that most consumers assume that a product labeled "green" or "eco-friendly" has some unspecified environmental advantage. As long as a marketer can substantiate that advantage, it is the WLF's view that the FTC cannot reasonably conclude that the claim is "deceptive." In the few instances where the marketer cannot substantiate such a claim, the FTC should bring an enforcement action. A categorical ban on all such generalized claims, however, cannot pass First Amendment muster. In addition, a categorical ban as proposed by the Green Guides would deter manufacturers whose product truly contains an environmentally-friendly attribute from conveying such information due to the expense of adding disclaimers that qualify their environmental claim. WLF also has concerns with the Green Guides' restrictions on the use of the term "degradable." Under the current language, marketers cannot use the term "degradable" even if it will degrade in the presence of water and oxygen if the product is likely to be disposed in environments (such as landfills) that lack those elements. In WLF's opinion, not only does the rule cut against the commonly understood definition of "degradable" and "biodegradable", but it also deprives consumers of information they want to have. For example, such a rule would deprive consumers of the ability to differentiate between non-degradable plastic bags and plastic bags that are degradable only when exposed to water and oxygen. Given the controversy in a number of communities over the use of plastic bags, it is unlikely that a consumer would not choose the latter if it had access to such information. WLF contends that saavy consumers already understand that "degradable" products are not likely to degrade in a landfill and that a more sensible solution to the risk that consumers could be deceived by claims that a product customarily disposed of in a landfill is degradable is to require a short disclaimer to accompany the degradable claim, such as "degradable under appropriate environmental conditions." Finally, WLF expressed concern over the FTC's proposal to prohibit marketers from advertising a carbon offset if the activity that forms the basis of the offset is already required by law. Similar to their objections to the FTC's proposed restrictions on the use of the word "degradable", WLF believes that carbon offset advertising is information consumers want to know, regardless of whether the activity is being done voluntarily or is required by law. Thus, given the importance some consumers place on carbon offsets, a company's motivation for participating in carbon offset programs should be irrelevant to whether a company can advertise this activity. While it will take the FTC Staff some time to review the many comments and consider whether and how to incorporate them into the revised Green Guides, we would expect to see final guides sometime this spring or early summer, followed by heightened FTC enforcement in the environmental marketing area. – Amy Mudge and Chester Choi

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