FTC seeks public comment on possible updates to Green Guides

The Green Guides are nonbinding guidance that explain the FTC’s general principles for environmental marketing claims and provide guidance on certain common claims. The Guides aim to help marketers avoid making unfair or deceptive environmental marketing claims that violate the Federal Trade Commission Act. While nonbinding, the Green Guides inform the FTC’s enforcement approach and are an important guidepost for evaluating environmental marketing claims.

Historically, the FTC has updated its Green Guides about once a decade, making this a rare opportunity for stakeholders to provide input on FTC’s environmental marketing claims policy. The FTC last revised the Green Guides in 2012.

In its request for comment,¹ the FTC focuses on whether the Green Guides should be updated to include new claims commonly appearing in the marketplace and whether existing information in the Green Guides should be updated to reflect changes in consumer perception. The FTC specifically invites comments that provide consumer survey evidence and perception data addressing environmental claims, including claims not currently discussed in the Green Guides. The FTC also specifically requests public comment on whether the Green Guides overlap or conflict with other federal, state, or local laws or regulations. The complete list of questions on which the FTC requests public comment is available here.

Specific Claims

In addition to the above, the FTC requests input on specific claims, including the following:

• “Recyclable”: The FTC seeks comments on whether it should revise its current guidance threshold, through which FTC advises that advertisers may make unqualified recyclable claims if recycling facilities are available to at least 60% of consumers or communities where the item is sold. The FTC also seeks comments on whether to include more guidance regarding claims for products that can be collected as recyclables but that do not ultimately get recycled because of market demand, budgetary constraints, or other factors. This latter issue raises a concern articulated by Greenpeace in its 2020 report “Circular Claims Fall Flat,” which criticized “recyclable” and “compostable” claims for products made with plastic material (in particular, plastic resin #3–7) that Greenpeace asserted is accepted but not actually recycled by many U.S. recycling facilities. Following the report, Earth Island Institute filed a lawsuit against several large food manufacturers alleging that much of the single-use plastic the companies used to package food that is labeled as recyclable is not in fact recycled. 
• “Recycled Content”: The FTC seeks comments on whether unqualified claims about recycled content, e.g., claims related to “pre-consumer” and “post-industrial” content, are widely understood by consumers. The Commission also asks whether alternative methods of substantiating recycled content claims may be appropriate, such as mass balance calculations or other methods. Use of mass balance accounting in particular could potentially implicate other claims.
• “Compostable”: The FTC seeks comments on whether “compostable” claims should be subject to a “substantial majority” standard like that for recyclable claims, as opposed to the current standard that requires “competent and reliable scientific evidence that all the materials in the item will break down into, or otherwise become part of, usable compost in a safe and timely manner in an appropriate composting facility, or in a home compost pile or device” (emphasis added). Under a “substantial majority” standard, a compostable claim would be appropriate where composting facilities are available to a substantial majority of consumers or communities where the item is sold.
• “Degradable”: The FTC seeks comments on whether its guidance for “degradable” claims merits revision, especially pertaining to timeframes for liquid products. The guidance currently states degradable claims must be supported by evidence the product will completely break down within one year.
• “Organic” and “Sustainable”: The FTC declined to address these claims in its last revision of the Green Guides in 2012. It now seeks comments on whether these claims merit discussion in the guidance, given that they have grown in popularity since the last revision.

Next steps

Comments on the FTC’s information request are due February 21, 2023. The FTC may also host public workshops to gather additional feedback. The FTC updates its Green Guides infrequently, so interested stakeholders should consider commenting, either directly or through a trade association.   Please do not hesitate to contact us if you have any questions.