FTC's 2012 Green Guides: What Does It Mean For Your Advertising Strategy?

The Federal Trade Commission released its much anticipated "Green Guides" earlier this month. As discussed here, on Foley Hoag's Law & the Environment blog, the guides seek to rein in the use of specious environmental marketing claims by ensuring that marketers have competent and reliable scientific evidence to back up express and implied environmental claims. As with other FTC guides (e.g., its 2009 Endorsement and Testimonial Guides), the Green Guides are quite specific, providing detailed guidance on a number of topics, including among others (1) claims concerning carbon offsets, (2) degradable claims, (3) non-toxic claims, (4) recycled content claims, (5) renewable energy claims, and (6) compostable claims.

Although the Green Guides do not hit every hot environmental marketing claim—discussion of "natural," "organic," and "sustainable" claims are noticeably absent—they certainly provide a very clear picture of how the FTC is likely to view environmental claims in the future. This clarity is surely a good thing for marketers.

Or is it?

Over the past several years, consumer class actions alleging unfair and deceptive advertising practices have risen sharply, often as a result of class action lawyers simply paying attention to competitor disputes concerning claim substantiation. Given the prevalence of environmental marketing claims, there is a risk that the class action attorneys will attempt to use the Green Guides as a roadmap for proving unfair or deceptive conduct in future cases.

Imagine, for instance, that at the time the FTC released its Green Guides, a trash bag manufacturer included the word "biodegradable" (in big, bolded letters, of course) on its packaging. When the manufacturer first began touting its trash bags as biodegradable, it had competent and reliable scientific evidence showing that its trash bags degraded within 18 months. Then the FTC published the Green Guides, which provide that...