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FTC’s New Green Guides Make Debut

10 Oct, 2012 By: Doug McPherson

WASHINGTON – The long-awaited final version of the Federal Trade Commission’s (FTC) Green Guides – geared to remove misleading environmental claims – is now available. Reaction is a mixed bag among insiders.

Advertising-law attorneys say there aren’t any big changes but add the guides could require marketers to do a better job of analyzing the broader environmental impact, even when making very specific claims, while also discouraging claims about relatively small improvements.

And the FTC now says companies shouldn’t make specific environmental claims if the impact is “negligible,” Jeff Greenbaum, attorney with Frankfurt Kurnit Klein & Selz in New York, told Advertising Age. “The headline is really that the final guidelines are out and now we’ve got the guidance we need to move forward. Companies have been in a holding pattern for years now [were] concerned about a lack of final guidance,” he added.

“That sounds at first glance like that makes sense,” Greenbaum continued. “What’s potentially concerning to companies is that you can’t just look at one individual product, but the whole ecosystem. If I’m selling hundreds of thousands of these products annually, what’s the total impact?”

The guidance could discourage companies from making incremental improvements if they can’t make marketing claims about them, he said. “Provisions like this could really impede the development of environmentally friendly products,” Greenberg added.

Also, the new version doesn’t address two common words in green marketing: “sustainable” and “natural.”

On “sustainable,” James Kohm, associate director for the enforcement division of the FTC, said there wasn’t enough information for cogent advice. Though the FTC most likely won’t revisit the Green Guides for another 10 years, Kohm said, it may open discussion on individual claims like “sustainable” before then.

“Natural” still isn’t a bad word because it has broader meaning outside of environmental marketing, according to Kevin Tuerff, cofounder of the Greenwashing Index, a project that lets consumers post and comment on ads making environmental claims. But Tuerff said in a statement he’s “disappointed the FTC didn’t tackle one of the hottest advertising buzzwords facing consumers today.”

Another change is that even a specific, substantiated claim, like “We use less plastic than before,” may not get marketers off the hook, said Chris Cole, attorney with Manatt Phelps & Philips in Washington. If that “less plastic” claim still conveys the message that the product overall is better for the environment, which Cole said is likely, marketers need at least a partial life-cycle analysis to prove the change, including additional energy expended in transporting or manufacturing the new packaging, has a net positive impact on the environment.

Marketers must also qualify “recyclable” claims if relevant recycling facilities aren’t available to at least 60 percent of the U.S. population. And products shouldn’t be billed as “made with renewable energy” unless “all or virtually all” significant manufacturing processes were powered with renewable energy or the company bought renewable energy certificates to match other energy use.

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