While companies that are doing good for the environment deserve to reap the benefits of their efforts, consumers should be aware of the heightened scrutiny from the FTC.
The Green Guides were issued by the FTC to help advertisers avoid deceptive environmental marketing. Compliance with the Green Guides can provide a safe harbor from FTC enforcement, as well as liability under state laws that incorporate the Green Guides. There is a request for comments about the meaning of "sustainable" in the Green Guides. The Green Guides should be considered by any business that wants tout the environmental attributes of its products.
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It's important that substantiation is key. Advertisers should have a valid reason for their claims. Substantiation helps ensure that the claim is true and not misleading. Documentation that can be used to verify environmental claims is required.
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Advertisers should not make unqualified claims of general benefit because it is necessary for each reasonable interpretation to be substantiated. It is easier to prove a claim if it is narrowly tailored.
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Advertisers should make specific comparative claims. The claim that 20% more recycled content is compared to what is interesting. Do you mean a previous version of the product? The advertiser is responsible for the reasonable interpretation that the product has 20% more recycled content than other brands and that the product has 20% more recycled content than the advertiser's older products.
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Advertisers should be careful when using general environmental benefit terms. Those kinds of claims feature prominently in many complaints, and they should only be used if the advertiser knows what the term means and can prove it.
Advertisers need to be careful when making environmental benefit claims about their products and services. They should tailor their claims to the environmental attributes they want to promote and make sure they have enough backup to back them up. For the time being, the FTC Green Guides will serve as important guidance for advertisers who want to inform consumers without exposing their business to FTC scrutiny or class action litigation.
Copyright © 2023, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume XIII, Number 82
