The Federal Trade Commission (FTC) announced on December 14, 2022, that it is seeking public comment on potential updates and changes to its “Green Guides,” kicking off a process that may lead to the first significant changes to the Guides since 2012.

Retailers and manufacturers increasingly advertise products or services with labels such as “eco-friendly,” “compostable,” and “ozone-friendly.” In turn, as we discussed in a recent alert on ESG and sustainability litigation, consumers and interest groups are increasingly alleging product liability claims about product attributes in an effort to compel changes in corporate environmental marketing and climate change practices.

The FTC’s Green Guides have long provided guidance on “green” marketing claims. As promised earlier this year, the FTC is requesting public comment on (1) whether there is a continuing need for the Green Guides; (2) what benefits the Green Guides provide consumers and what evidence supports any asserted benefits; and (3) whether and what modifications should be made to the Green Guides to increase their benefits to consumers.

Of particular interest, as companies are more commonly setting and disclosing greenhouse gas emissions reductions targets and net-carbon zero goals, is the FTC’s proposal to revisit the guidance relating to “carbon offsets” and other climate-change related claims such as “net zero,” “carbon neutral,” and “low carbon.” The initial comment period will open in mid-January 2023 when the request for public comment is published in the Federal Register and will last for 60 days.

Why Should I Care About Green Guides?

First issued in 1992, the Green Guides provide guidance on environmental marketing claims, including how consumers are likely to interpret particular claims and how marketers can substantiate claims to avoid deceiving consumers. Failure to comply with the Guides can expose your business to costly civil fines, government investigations, and consumer class actions.

The Green Guides provide detailed guidance on a variety of environmental marketing claims, including:

• General Environmental Benefit Claims

• Carbon Offsets

• The Use of Environmental Certifications and Seals of Approval

• Status as Compostable

• Status as Degradable

• Free-Of Claims, i.e., claims that products or services “are free of” certain substances

• Non-Toxic Claims

• Ozone-Safe and Ozone-Friendly Claims

• Status as Recyclable

• Recycled Content

• Renewable Energy Claims

• Renewable Materials Claims

Notably, the Guides currently do not offer guidance on the use of the terms “sustainable” or “sustainability,” claims that have proliferated in the marketplace over the last decade. Among other things, the FTC may consider whether to issue new guidance on the reasonable consumer interpretation of “sustainable.”