GoGreen Portland Conference – October 16, 2014
Expert Insight on the New Federal Trade
Commission’s Green Marketing Guidelines
Presenter:
Carol Pratt, Ph.D. JD
© Copyright 2014 by K&L Gates LLP. All rights reserved.
One SW Columbia St., Suite 1900
Portland, OR 97258
503.226.5762
carol.pratt@klgates.com
FTC’s Green Guides
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FTC first issued Green Guides in 1992
FTC revised Green Guides in 1996 and 1998
FTC proposed revisions in October 2010
Released final revised Green Guide in October 2012
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FTC’s Revised Green Guides – 16 CFR Part 260
Sec. 260.1 Purpose, Scope, and
Structure of the Guides.
260.8 Degradable Claims.
260.2 Interpretation and
Substantiation of Environmental
Marketing Claims.
260.10 Non-Toxic Claims.
260.3 General Principles.
260.11 Ozone-Safe and OzoneFriendly Claims.
260.12 Recyclable Claims.
260.4 General Environmental
Benefit Claims.
260.13 Recycled Content Claims.
260.14 Refillable Claims.
260.5 Carbon Offsets.
260.6 Certifications and Seals of
Approval.
260.7 Compostable Claims.
260.9 Free-Of Claims.
260.15 Renewable Energy Claims.
260.16 Renewable Materials
Claims.
260.17 Source Reduction Claims.
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FTC’s Revised Green Guides – Highlights
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Substantiation
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A claim is deceptive if it is likely to mislead consumers
acting reasonably under the circumstances and is
material to consumers’ decisions
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Before making a claim, must ensure that:
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“all reasonable interpretations” of claim
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are truthful and not misleading, and
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supported by a reasonable basis
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Often requires competent and reliable scientific
evidence
Must substantiate explicit and implicit claims
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FTC’s Revised Green Guides – Highlights
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Substantiation
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Tests must be done on actual product conditions
(industry standards are not sufficient)
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“Recyclable” claim may be misleading if there are no
recycling facilities in the area where the product is
marketed
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“Degradable” claim may be misleading if it will not
degrade within a reasonable time in the environment
where it is customarily disposed in that area
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FTC’s Revised Green Guides – Highlights
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General claims of environmental benefit
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Product is generally good for the environment
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“Green”
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“Eco-friendly” or “environmentally friendly”
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“Eco-smart”
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“Sustainable”
FTC warns against use of such claims
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They are vague, misunderstood by consumers and
too broad to be substantiated
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Must add qualifiers – clearly and prominently
displayed
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Net environmental benefit must be > de minimis
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FTC’s Revised Green Guides – Highlights
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Certifications & seals of approval
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Deceptive to imply authentication by an independent
third party that, in fact, is not independent
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Should not use unqualified certifications/seals of
approval that do not specify the basis for the
certification
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E.g., trade association controlled by entities for which
it provides certifications
Unqualified certifications/seals = general
environmental benefit claims
Third party certification does not eliminate
responsibility for substantiation
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FTC’s Revised Green Guides – Highlights
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Compostable claims
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Unqualified claims
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“100% compostable”
Are deceptive unless have scientific evidence that:
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all materials in the product will decompose
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within about the same time as the materials with which
the product is composted
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in an appropriate composting facility, or in a home
compost pile or device
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FTC’s Revised Green Guides – Highlights
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Compostable claims
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Should qualify claims if product:
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cannot be composted safely or in a timely manner in a
home compost pile or device,
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May not be compostable when disposed of in a landfill
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If facilities are not available to a substantial majority of
consumers or communities where the item is sold
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FTC’s Revised Green Guides – Highlights
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Degradable claims
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Unqualified claims are deceptive unless have
scientific evidence that:
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the entire item
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will completely break down and return to nature (i.e.,
decompose into elements found in nature)
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within one year of customary disposal
Unqualified degradable claims for items that are
customarily disposed of in landfills, incinerators, and
recycling facilities are deceptive
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These locations do not present conditions in which
complete decomposition will occur within one year
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FTC’s Revised Green Guides – Highlights
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“Free of” Claims
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Claim that a product, package, or service does not
contain or use a substance is deceptive if:
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The product, package, or service contains or uses
substances that pose the same or similar
environmental risks as the substance that is not
present; or
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The substance has not been associated with the
product category.
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FTC’s Green Guides - Enforcement
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Investigate unfair or deceptive acts/practices
File Complaint if FTC has“reason to believe” a violation of law
has occurred
Respondent can settle or defend
If settle:
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Sign Consent Agreement - without admitting liability, consent to entry
of final order and waive right to judicial review
FTC posts proposed Consent Agreement on website for 30 days
FTC issues final Decision and Order
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FTC’s Green Guides - Enforcement
FTC Complaint
December 2013
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FTC’s Green Guides - Enforcement
FTC Complaint (MacNeill)
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Product – golf tees (“FLYTees”)
Biodegradable claims
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“FLYTees are completely biodegradable!”
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“FLYTee is made from a specially formulated
sustainable bio-plastic that enables the material to
maintain durability and performance, while still
breaking down into CO2 and water when it is done
being used.”
Certificate of Biodegradability
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FTC’s Green Guides - Enforcement
FTC Complaint (MacNeill)
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FTC’s Green Guides - Enforcement
FTC Complaint (MacNeill)
Note FTC offers no proof or
evidence to support allegations
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FTC’s Green Guides - Enforcement
FTC Complaint (MacNeill)
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FTC’s Green Guides - Enforcement
FTC Decision and Order
December 2013
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FTC’s Green Guides - Enforcement
FTC Decision and Order
Criteria for
“degradable” claim
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FTC’s Green Guides - Enforcement
FTC Decision and Order
Competent and
reliable scientific
evidence before
claim is made
General
environmental
claim must be
substantiated
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FTC’s Green Guides - Enforcement
FTC Decision and Order
• Maintain records
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For 5 years after last use of ad covered by Order of:
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All ads, labeling, packaging and promotional materials
Substantiation data and unsupportive data
Notify FTC 30 days before any change in the
company that could affect compliance with
Consent Order
Provide to FTC within 60 days a plan for complying
with Consent Order
Consent Order terminates in 20 years
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FTC’s Green Guides – Take Home Messages
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FTC enforcement is painful
Cannot rely on opportunity to cure (unlike FDA)
Not a level playing field
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Assess risk before launching ads
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Cannot rely on actions of competitors as protection
FTC does not target everyone in the product class
Develop and follow SOPs
Document, document, document
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Keep documents well organized, current and ready
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Questions?
Carol A. Pratt, Ph.D., JD
K&L Gates LLP
Portland, OR
503-226-5762
carol.pratt@klgates.com
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