So your revolutionary product is sustainable, biodegradable, eco-friendly, and/or carbon neutral? Prove it.
That is what the Federal Trade Commission (“FTC”) has been saying. The FTC took action this last summer against allegedly false, unsubstantiated “green-washing” claims, when it filed three administrative lawsuits against companies (notably among them, Kmart Corp.) for claiming their paper-based products were “biodegradable.”
The FTC’s 1992 “Green Guide” states that unqualified “biodegradable” claims are only permissible with corroborating scientific evidence that the product will completely decompose within a reasonably short period of time under customary methods of disposal. According the FTC, this is not the case for products typically headed to the landfill for slow decomposition. Kmart settled the litigation, voluntarily agreeing to comply and consenting to ongoing monitoring by the FTC. Consistent with its recent testimony before the House Subcommittee on Commerce, Trade, and Consumer Protection of the Committee on Energy and Commerce, this signals a newly emerging policy of more aggressive enforcement by the Commission against spurious green advertising.
Are you greenwashing? Any deceptive practice in or affecting commerce constitutes a violation of Section 5 of the FTC Act. This includes ambiguous claims likely to confuse consumers.
According to Sec. 260.5 of the Green Guide (updated in 1998), any objective assertion about the environmental attribute of a product, package, or service must have a reasonable basis, consisting of competent and reliable evidence as of the time the claim was made. This includes scientific evidence, defined as tests, analyses, research, studies, or other evidence based on professional expertise, using generally accepted procedures to yield accurate, reliable results. Terms such as “Eco-“ or “environmentally safe, ” or any claim that leads consumers into wrongly believing a product feature, for example, does not cause environmental risks associated with other manufacturing processes for such products (e.g., “chlorine free bleaching”) – could be deemed deceptive toward consumers.
The FTC is currently revising its guides, looking at particular claims, such as “Eco-friendly,” “sustainable,” and “carbon neutral” which were not in common usage when last updated in 1998. There will also be focus on the EnergyGuide label as used on energy efficient appliances, as well as required lighting disclosures for energy saving bulbs. The FTC’s research is expected to catalyze a new generation of enforcement actions by the FTC against false, misleading and unsubstantiated “green” advertising claims.
The current list of environmental marketing cases and/or copies of individual cases can be obtained by calling the FTC’s Consumer Response Center: (202) 326-2222
The FTC’s most up-to-date “Green Guide,” entitled Guides for the Use of Environmental Marketing Claims can be found here: www.ftc.gov/bcp/grnrule/guides980427.htm.
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