Revising the Green Guides has taken many years. FTC employed a national effort to obtain public input and collect industry comments regarding the proposed revisions.

In conjunction with FTC’s Green Guides, the FTC has taken on the issue of defining carbon offsets, the use of green certification and seals, defining of renewable energy and renewable material claims.

FTC Chairman Jon Leibowitz has stated that “the introduction of environmentally friendly products in the marketplace is a win for consumers who want to purchase greener products and producers who want to sell them. But this win-win can only occur if marketers’ claims are truthful and substantiated. The FTC’s changes to the Green Guides will level the playing field for honest business people, and it is one reason why we had such broad support”.

It is interesting to note that these revised Green Guides fail to take on some of the more thorny issues. The FTC failed to provide guidance on the use of the terms “sustainable”, “natural”, and “organic”. The FTC has suggested that the term organic has already been sufficiently defined by the U.S. Department of Agriculture.

A review of FTC’s enforcement history indicates that they have brought claims for deceptive use of the terms; recyclability, and biodegradable. FTC has raised questions regarding the environmental certification program. Given the introduction of these new Green Guides, it is a clear indication that the FTC will increase enforcement activity in this area.

I have written on this topic before and the potential legal pitfalls for companies making environmental representations regarding their products. Careful consideration is necessary when using what I refer to as “eco-logos” as proof of the “greenness” of your company’s products. Given the significance of these issues several blog entries will be posted in the future on various key provisions of the revised Green Guides.

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1. Degradable – Let’s take a brief look at what constitutes degradable according to the FTC’s Green Guides. The FTC takes the position that one needs to clarify in an advertisement whether the product and/or the package is degradable. Degradation can occur through the process of biodegradation, oxo-degradation, oxo-biodegradation, or photodegradation. In any case, it is up to the company that is marketing the product to have reliable scientific evidence that the item in its entirety will break down and return to nature and be degraded into elements found in nature.

To have this positive attribute, degradation of the product must occur within a reasonably short time after customary disposal. As a rule of thumb, items that do not completely decompose within one year after customary disposal should not be advertised as degradable without clarification. Furthermore, if the product does not degrade in a customary disposal (such as a typical landfill) setting, it would be deceptive to advertise this benefit.

Anything short of complete degradation within one year following disposal must be clarified and qualified in the advertisement. These qualifications or limitations on the representation that the product is degradable must be prominent and clearly understandable by the average consumer.

2. Compostable – An alternative to being degradable, are products that are advertised as compostable. Again, the marketer making the claim that the product is compostable must have competent and reliable scientific evidence that all the materials in the item will break down or otherwise become part of a usable compost (such as soil enhancement or mulch) in a safe and timely manner. This decomposition must be done at an appropriate composting facility or in a home compost unit.

It is considered deceptive to not qualify the representation if adding the product to the compost pile will not be broken down in a safe or timely manner. It could also be deceptive if the claim suggests introducing this material into a landfill has environmental benefits.

As a general rule, a marketer cannot represent that its product is appropriate for compost if such a composting facility is not readily available to a substantial majority of consumers where the product is sold. The FTC suggests that such facilities should be available to at least 60% of the consumers.

It would be deceptive under the FTC’s Green Guides if in the process of introducing the materials into a composting facility, the product actually releases toxins or other chemicals which prevents the compost from being usable.

In either case, when a manufacturer would like to advertise that its product is biodegradable or compostable, this should only be done if there is competent and reliable scientific support for such a claim.

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