September 23, 2019

September 23, 2019

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September 20, 2019

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Six Enforcement Actions Brought Challenging Environmental Product Claims Allegedly Failing To Comply With the FTC's (Federal Trade Commission) 'Green' Guides

On October 29th, the Federal Trade Commission (FTC) announced six enforcement actions, including one that imposed a $450,000 civil penalty.   All six actions challenged allegedly unsupported “green” claims relating to the biodegradability of certain products.    

In the $450,000 civil penalty case, the advertiser allegedly failed to adequately substantiate claims that its paper plates and bags would (a) biodegrade within one year when disposed in a landfill, or (b) compost in a safe and timely manner in a home composting pile, or that the plates were recyclable.

In the other five enforcement actions, the FTC mainly alleged that the advertisers lacked adequate substantiation for claims that plastic products treated with certain additives were biodegradable, biodegradable in a landfill, or biodegradable in a certain timeframe.

These actions serve as strong reminders that advertisers must have adequate evidence to support environmental claims about their products. The actions are part of the FTC’s program to ensure compliance with its Green Guides, which were significantly revised in October 2012.  The Green Guides are designed to help ensure that claims about the environmental attributes of products are truthful and non-deceptive.  Companies should ensure compliance with the Green Guides before making any advertising claims about the environmental effects of their materials or finished products.

Among other things, the Guides address the following kinds of claims and requirements:

  • The proper use of general environmental claims such as “green” or “eco-friendly” (which are generally disfavored);

  • Ensuring that limitations or explanations of claims be clear, prominent and specific;

  • The proper ways to advertise carbon offsets, including not promoting offsets that are already required by law, and disclosing if a purchased emission reduction won’t occur for at least two years;

  • The proper use of certifications or seals of approval, including disclosing any material relationship between the certifying agency and the advertiser;

  • The requirement that all materials in a product claimed to be compostable will break down or become part of usable compost safely, and at about the same time as the materials with which it is composted;

  • Prohibition of blanket  “biodegradable” claim unless the entire product or package will break down and return to nature within a reasonable period of time after disposal;

  • Prohibition of claims that a product is “Free-of” a substance if it has more than a trace amount;

  • Ensuring that a product claimed to be “non-toxic” is safe for people and the environment;

  • Having scientific evidence showing that a product claimed to be “ozone-friendly” or safe, is in fact as claimed;

  • Having adequate substantiation for  a “recyclable” claim, and properly qualifying claims for products only made partly from recycled materials; and

  • How and when it is proper to make claims that a product is made with renewable energy or renewable materials. 

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Greenberg Traurig's Antitrust Litigation & Competition Regulation Practice supports clients on the broad array of antitrust issues, drawing on the capabilities of attorneys in the United States, Europe, Latin America, and Asia. We advise on the antitrust aspects of mergers, acquisitions and joint ventures, including handling complex multi-jurisdictional merger control filings. We work with clients to craft antitrust compliance programs, oversee internal investigations, represent clients in government antitrust investigations, and are trial-ready for litigation when...

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