The Federal Trade Commission (FTC or Commission) has announced that it will seek public comment on its Guides for the Use of Environmental Marketing Claims (the Green Guides), formally commencing the periodic review it announced last year.1 The agency will also consider whether to pursue rulemaking to establish environmental marketing regulations that, unlike the Green Guides, would carry the force of law, including substantial civil penalties for any violations. Comments must be received by February 21.2
The Green Guides, which have not been updated since 2012, will likely be revised to include new terms and claims; and guidance on certain claims may be made stricter.
Parties (and, in some cases, state laws themselves) sometimes look to the Green Guides to supply standards around claims regarding recyclability, sustainability, toxicity, and a range of other environmental attributes. Thus, the updated Green Guides likely will impact existing and future lawsuits and litigation trends. Clearer standards in the updated Green Guides could heavily influence state regulation of environmental marketing claims.
And, of course, if the FTC does pursue actual environmental marketing regulations, even greater impacts will be felt. Such clearer guidance could spur plaintiffs’ lawyers but could also provide the certainty needed to entice entities to enter into environmental markets, possibly generating more investment because of greater confidence about how to advertise environmental offerings or undertakings without the risk of litigation.
The comment period is now open, and commenters may file online or by mail through February 21. In its review, the FTC will consider several specific issues that have arisen or evolved since it last revised the Green Guides, including claims related to carbon impact, biodegradability, and organic products.
Why the Green Guides matter
Since first issued in 1992, the Green Guides have been the most notable federal-level tool concerning…