If You Make Any Environmental Claims About Or Use Certification Marks on Products or for Services…The FTC has News for You.

On October 1, 2012, the Federal Trade Commission issued its revised Guides for the Use of Environmental Marketing Claims, known as the “Green Guides.” The purpose of the Guides is to help marketers avoid making environmental marketing claims that may be perceived as deceptive or unfair under Section 5 of the FTC Act. The Guides do not confer any rights on any person and they do not bind the FTC or the public. The FTC does have the right to take action under the FTC Act if an environmental claim is made that is inconsistent with the Guides. They do not preempt federal, state, or local laws, and compliance with those laws does not preclude an action by the FTC. As stated therein, the Guides apply to “claims about the environmental attributes of a product, package, or service in connection with the marketing, offering for sale, or sale of such item or service to individuals… and also apply to business-to-business transactions.” The “claims” include those made in labeling, advertising, promotional materials, and all other forms of marketing in any medium, whether asserted directly or by implication, by words, symbols, logos, depictions, product brand names, or any other means.

The Guides address general and more specific and substantive types of claims in the following categories:

• General Environmental Benefit Claims
• Carbon Offset Claims
• Certification and Seals of Approval Claims
• Compostable Claims
• Degradable Claims
• Free-Of Claims
• Non-Toxic Claims
• Ozone-Safe and Ozone-Friendly Claims
• Recyclable Claims
• Recycled Content Claims
• Refillable Claims-Renewable Energy Claims
• Renewable Materials Claims
• Source Reduction Claims

This article will focus specifically on the Certification and Seal of Approval claims.

Section 260.6 of the Guides makes it “deceptive” to misrepresent “directly or by implication, that a product, package, or service has been endorsed or certified by an independent third-party.” In the Guides, the FTC discusses three basic categories of certification: (1) self-certification, (2) membership organization certification, and (3) independent third-party certification.

The first type–self-certification–occurs when a marketer/seller uses a seal of approval, logo, or certification mark that is not backed by an independent, third-party evaluation. The FTC considers certifications of this type likely to be deceptive since consumers generally assume that certifications are not self-awarded. The FTC advises that very clear and prominent language be used in connection with such certifications to ensure the public knows that such a certification was created and awarded by the user of the certification to itself.

The second type of certification–membership organization certification–is one used by members of a membership organization based usually only upon payment of dues and not any type of testing or evaluation. Again, the FTC advises that in order to avoid a finding of deceptiveness, use of these types of “certifications” should be accompanied by clear language indicating that there has been no evaluation of the products on or services with which the certification is used.

The third type of certification–third-party certification–is generally the type for which certification marks are registered at the US Trademark Office. Under US trademark law, a “certification mark is any word, name, symbol, or device, or any combination thereof, which is used by someone other than the owner of the mark to certify “regional or other origin, material, mode of manufacture, quality, accuracy, or other characteristics of goods or services or that the work or labor on the goods or services was performed by members of a union or other organization.” 15 USC 1127. The purpose of such a certification mark is to inform purchasers that the goods or services certified possess certain characteristics or meet certain qualifications or standards established by someone other than the seller. The message to be conveyed by a certification mark is that the goods or services certified have been examined, tested, inspected or otherwise tracked by an independent party and by methods that have been established by the certifier/owner of the mark The owner of the certification mark must exercise control over the use of its mark, as is the case with all other types of marks, and must also state that it does not itself use the mark. Well known certification marks include the GOOD HOUSEKEEPING® seal of approval, the UL CERTIFIED® mark, the BETTER BUSINESS BUREAU® endorsement, as well as the use of regional certification marks such as ROQUEFORT®.

The FTC has made clear that a marketer must be able to substantiate all the claims which are reasonably communicated by a “certification,” and that an environmental certification or seal of approval must convey the basis for the certification or seal either through the name/mark or some other means. The use of “clear and prominent qualifying language” is recommended so that the certification or seal avoids any deception and refers only to the specific and limited benefits of the certification or seal.