Go Green: FTC Regulations
…and Beyond!
By
Julia Wright, MAS
About Julia
• What is “Green”?
• There is no clear definition .
• “Green is in the eye of the beholder”
• This has led to the misuse of this term...so the FTC stepped
in…
Revised Green Guides published Oct 1, 2012.
After 2 years of feedback and nearly 340
unique comments, the FTC has published the
revised Green Guides (Section 240).
Six new sections (vs 1998 version)
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certifications and seals of approval
carbon offsets
free-of claims
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made with renewable energy claims
made with renewable materials claims
non-toxic claims
The (Revised) Guides also:
advise marketers not to make an unqualified degradable claim for a solid waste product
unless they can prove that the entire product or package will completely break down and
return to nature within one year after customary disposal;
caution that items destined for landfills, incinerators, or recycling facilities will not degrade
within a year, so marketers should not make unqualified degradable claims for these
items; and
clarify guidance on compostable, ozone, recyclable, recycled content, and source
reduction claims.
What’s new?
The Guides caution marketers not to make broad, unqualified claims that a product is
“environmentally friendly” or “eco-friendly” because the FTC’s consumer perception
study confirms that such claims are likely to suggest that the product has specific and
far-reaching environmental benefits.
Very few products, if any, have all the attributes consumers seem to perceive from
such claims, making these claims nearly impossible to substantiate.
Eco-Friendly Condoms?
General Eco Friendly Claims.
The plastic and foil wrappers condoms are
packaged in are not biodegradable.
Sure, Latex biodegrades, but Latex condoms are
made mainly from latex with added
stabilizers, preservatives and vulcanizing
(hardening) agents. Latex is a natural
substance made from rubber trees, but
because of the added ingredients most latex
condoms are not biodegradable.
Population Control certainly is eco-friendly
Certifications and Seals of Approval
• This new section emphasizes that certifications/seals are endorsements covered by
the Commission’s Endorsement Guides and provides new examples illustrating
how those Guides apply to environmental claims (e.g., marketers should disclose
material connections to the certifier).
• Because an unqualified certification/seal (one that does not state the basis for
certification) likely conveys a general environmental benefit claim, marketers
should use clear and prominent language limiting the claim to particular
attribute(s) for which they have substantiation.
• Third-party certification does not eliminate a marketer’s obligation to have
substantiation for all conveyed claims.
Think of this like a celebrity (or paid) endorsement.
A note about Certifications
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According to www.ecolabelindex.com – there are currently 424 ecolabels in 246 countries.
Only 2 Government Labels:
Energy Star
USDA Organic
Our Industry Certifications
USDA Organic: Organic is a labeling term that indicates that the food or other agricultural product has been
produced through approved methods that integrate cultural, biological, and mechanical practices that foster
recycling of resources, promote ecological balance, and conserve biodiversity. Synthetic fertilizers, sewage sludge,
irradiation, and genetic engineering may not be used.
QCA:
Quality Certification Alliance is an independent, accreditation organization whose mission is to elevate the
standards by which industry firms that import and/or manufacture promotional products provide consistently
safe, high-quality, socially compliant and environmentally conscientious merchandise.
FSC:
FSC certification is a voluntary, market-based tool that supports responsible forest management worldwide. FSC
certified forest products are verified from the forest of origin through the supply chain. The FSC label ensures that
the forest products used are from responsibly harvested and verified sources.
SFI:
The SFI 2010-2014 Standard promotes sustainable forest management in North America through 14 core
principles that promote sustainable forest management, including measures to protect water quality, biodiversity,
wildlife habitat, species at risk, and Forests with Exceptional Conservation Value.
GOTS: The Global Organic Textile Standard (GOTS) is the worldwide leading textile processing standard for organic
fibers, including ecological and social criteria, backed up by independent certification of the entire textile supply
chain.
SEARCH THESE IN SAGE!
Dropdown
box listing
50 different
standards –
TSA, CPSIA,
ISO, etc.
Caution –
not verified!
QCA
Degradable
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advise marketers not to make an unqualified degradable claim for a solid waste product unless they can
prove that the entire product or package will completely break down and return to nature within one year
after customary disposal;
caution that items destined for landfills, incinerators, or recycling facilities will not degrade within a year,
so marketers should not make unqualified degradable claims for these items; and
clarify guidance on compostable, ozone, recyclable, recycled content, and source reduction claims.
Industry Example:
“Made using revolutionary material. Reusable, 100% Recyclable,
degradable, and uses 50% less non-renewable resources.”
1 – City of Phoenix does not offer recycling of non-rigid plastics
2 – Does it meet the FTC definition of “degradable”?
3 – 50% less non-renewable resources compared to what?
Compostable
A marketer claiming that an item is compostable should have competent and reliable
scientific evidence that all the materials in the item will break down into, or otherwise become
part of, usable compost (e.g., soil-conditioning material, mulch) in a safe and timely manner
(i.e., in approximately the same time as the materials with which it is composted) in an
appropriate composting facility, or in a home compost pile or device.
One industry supplier described this favorite style this way:
Support the green Movement without breaking the bank with this
earth-friendly Biodegradable pen! made of recycled cardboard, this
click-action ballpoint pen also features a stylish wood clip and a
compostable corn plastic resin tip and plunger sure to please every
crowd. Black ink cartridge.
Ozone-Safe/Ozone-Friendly
• It is deceptive to misrepresent, directly or by implication, that a product,
package, or service is safe for, or friendly to, the ozone layer or the
atmosphere.
Not many products in this category for our
industry. Found a few Car Air Purifiers that claim
to “Ionize air purifier for auto car, producing ozone
and anion.”
How measured? Cost of energy?
Recyclable
FTC Example:
A package is labeled “Includes some recyclable material.” The package is composed of four layers of
different materials, bonded together. One of the layers is made from recyclable material, but the others
are not. While programs for recycling the 25 percent of the package that consists of recyclable material
are available to a substantial majority of consumers, only a few of those programs have the capability to
separate the recyclable layer from the non-recyclable layers.
The claim is deceptive for two reasons. First, it does not specify the portion of the product that is
recyclable. Second, it does not disclose the limited availability of facilities that can process multilayer
products or materials. An appropriately qualified claim would be “25 percent of the material in this
package is recyclable in the few communities that can process multi-layer products.”
Industry Example
“Made with 50% recycled plastic.
Durable plastic barrel, splinter free.
Synthetic resin and wood-free.”
Supplier indicates that this is a
“Recyclable” product on SAGE.
City of Phoenix
Recycling
Phoenix is the 6th largest
City in the United States.
If we can’t recycle it…
Free-of/Non-Toxic
One Example from the FTC: A package of t-shirts is labeled “Shirts made with a chlorine-free bleaching process.” The shirts,
however, are bleached with a process that releases a reduced, but still significant, amount of the same harmful byproducts
associated with chlorine bleaching. The claim overstates the product’s benefits because reasonable consumers likely would
interpret it to mean that the product’s manufacture does not cause any of the environmental risks posed by chlorine bleaching. A
substantiated claim, however, that the shirts were “bleached with a process that releases 50% less of the harmful byproducts
associated with chlorine bleaching” would not be deceptive.
16 oz double wall insulated acrylic
tumbler with straw. The double wall
insulation in this tumbler is perfect for
keeping your beverages hot or cold
without impacting your grip. Includes a
9" straw with stopper so it won't fall out
of the cup. Hand wash only, do not
microwave. BPA and lead free, Prop 65
compliant. Measures: 4" x 6". They look
disposable, but they are in fact reusable
and incredibly stylish. 4" W x 6" H
What is replacing BPA?
The Pacific Cooler is filled with a
super absorbent polymer which is
non-toxic, biodegradable, and
environmentally safe! Price includes
one color imprint and individual
polybag with instruction card.
Non-toxic needs to mean nontoxic to people as well as to
the environment.
Made with Renewable Materials
Research suggests that reasonable consumers may interpret renewable materials claims differently than
marketers may intend. Unless marketers have substantiation for all their express and reasonably implied
claims, they should clearly and prominently qualify their renewable materials claims. For example, marketers
may minimize the risk of unintended implied claims by identifying the material used and explaining why the
material is renewable.
Marketers should also qualify any “made with renewable materials” claim unless the product or package
(excluding minor, incidental components) is made entirely with renewable materials.
Made with Renewable Energy
A marketer should not make unqualified renewable energy claims, directly or by implication, if fossil fuel, or electricity derived
from fossil fuel, is used to manufacture any part of the advertised item or is used to power any part of the advertised service,
unless the marketer has matched such non-renewable energy use with renewable energy certificates.
•Company X retractable ballpoint
pen with shiny surface, available
in transparent or opaque plastics.
Equipped with Company X refill
774. Green certified through
EMAS (EU ecological audit
regulation) and ISO 14001.
Produced with 100% renewable
energies and PVC free.
Promote renewable energy and empower
people's hearts and minds with positive
messages that show you're doing your part to
help our planet's future. Company X’s exclusive
scale model Hybrid e.Turbine Fans generate a
cool breeze and draw attention to get noticed.
Solar model requires sunshine or equivalent to
power a small motor that spins the turbine's
blades. Popular Hybrid e.Turbines perfectly
connect energy conservation with your
promotions in the coolest way!
Carbon Offsets
Given the complexities of carbon offsets, sellers should employ competent and reliable scientific and
accounting methods to properly quantify claimed emission reductions and to ensure that they do not sell the
same reduction more than one time.
It is deceptive to misrepresent, directly or by implication, that a carbon offset represents emission reductions
that have already occurred or will occur in the immediate future. To avoid deception, marketers should clearly
and prominently disclose if the carbon offset represents emission reductions that will not occur for two years
or longer.
It is deceptive to claim, directly or by implication, that a carbon offset represents an emission reduction if the
reduction, or the activity that caused the reduction, was required by law.
Enforceable?
Class Actions (related to “Green” in 2011)
• Class action attorneys have been busy in the area of green marketing as well. For example, the
makers of Fiji Water successfully fended off a putative class action regarding their use of a “green
drop logo” on packages. The plaintiffs had contended that the logo conveyed the impression that
the product had been certified by a third-party environmental organization, when in reality, the
logo was self-administered by the Fiji marketing department. Although this kind of conduct would
likely be banned under the new FTC Guides, the court found that it was not misleading to any
reasonable consumer and dismissed the case.
• SC Johnson settled a class action earlier this year regarding its use of a self-certification on Windex
and other cleaning products it sells, called “Greenlist.” In that case, the plaintiffs had contended
that the self-certification was misleading, both because it was self-administered and because it
permitted the inclusion of glycol ethers in the Windex formulation. SC Johnson folded its cards
rather than fight the case, dropping the Greenlist logo program.
• Numerous cases are now pending throughout the country on the labeling of food products
containing high-fructose corn syrup (“HFCS”) as “all-natural” or “natural.” Surprisingly, the FDA has
no enforceable regulations on its books about the term and the FTC has also stayed out of the area,
thus creating the kind of ambiguity on which consumer class action plaintiffs’ lawyers depend. In a
related area, the Corn Refiner industry is defending a Lanham Act false action by a group of sugar
growing cooperatives over similar HFCS labeling claims. The terms “sustainable,” “natural,” and
“organic.” are under the US Department of Agriculture
• The regulation of green marketing is dynamic and largely unsettled. As the rules begin to emerge,
marketers will have to proceed carefully.
The 7 Sins of GreenWashing
1.
Sin of the Hidden Trade-off: committed by suggesting a product is “green” based on an unreasonably
narrow set of attributes without attention to other important environmental issues. Paper, for example, is
not necessarily environmentally-preferable just because it comes from a sustainably-harvested forest.
Other important environmental issues in the paper-making process, including energy, greenhouse gas
emissions, and water and air pollution, may be equally or more significant.
2.
Sin of No Proof: committed by an environmental claim that cannot be substantiated by easily accessible
supporting information or by a reliable third-party certification. Common examples are tissue products
that claim various percentages of post-consumer recycled content without providing any evidence.
3.
Sin of Vagueness : committed by every claim that is so poorly defined or broad that its real meaning is
likely to be misunderstood by the consumer. “All-natural” is an example. Arsenic, uranium, mercury, and
formaldehyde are all naturally occurring, and poisonous. “All natural” isn’t necessarily “green”.
4. Sin of Irrelevance: committed by making an environmental claim that may be
truthful but is unimportant or unhelpful for consumers seeking environmentally
preferable products. “CFC-free” is a common example, since it is a frequent claim
despite the fact that CFCs are banned by law.
5. Sin of Lesser of Two Evils: committed by claims that may be true within the
product category, but that risk distracting the consumer from the greater
environmental impacts of the category as a whole. Organic cigarettes might be an
example of this category, as might be fuel-efficient sport-utility vehicles.
6. Sin of Fibbing: the least frequent Sin, is committed by making environmental
claims that are simply false. The most common examples were products falsely
claiming to be Energy Star certified or registered.
7. Sin of Worshiping False Labels: The Sin of Worshiping False Labels is committed by
a product that, through either words or images, gives the impression of third-party
endorsement where no such endorsement actually exists; fake labels, in other
words.
The Supplier’s role is pretty clear, right?
Give clear and accurate product descriptions.
Keep adding more “green” products to your lines!
Certification is key.
Compliance needs to communicate with Marketing and Sales Reps
What can a Distributor do? - TARGET!!
What is the client trying to accomplish?
What is the best way to solve their problem/need?
What demographic info do you have access to?
What are the client’s values? (ie- water conservation)
Look at the options:
What is the product made of?
Where did it come from (import or domestic)
Durability!
Disposal – recycle, compost, landfill?
Is there an alternative?
How is it packaged?
Sources:
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http://www.bureauveritas.com/wps/wcm/connect/bv_com/group/home/about-us/our-business/ourbusiness-consumer-products/news+and+events/regulatory+bulletins/ftc_green_guides_revisions
http://www.environmentalleader.com/2011/08/18/regulation-of-green-marketing-the-state-of-play-insummer-2011/
http://www.greenbiz.com/news/2009/06/12/lawmakers-whats-green-and-whats-greenwash
http://www.greenbiz.com/news/2009/06/12/lawmakers-whats-green-and-whats-greenwash
http://www.ftc.gov/opa/2010/10/greenguide.shtm
http://en.wikipedia.org/wiki/LOHAS
http://www.ftc.gov/opa/2012/10/greenguides.shtm