On June 18, Commissioner Rosch gave a speech on “Responsible Green Marketing” to American Conference Institute’s Regulatory Summit for Advertisers and Marketers. His remarks covered a range of green marketing topics, but we focus on two here: the FTC’s current enforcement activities and its revisions to the Guides for the Use of Environmental Marketing Claims or “Green Guides.”
Commissioner Rosch gave two reasons for the fact that the FTC has not brought any cases under the Green Guides since 2000. First, industry has been abiding by the Guides. Second, private enforcement under the Lanham Act and self-regulation have developed into effective alternative enforcement mechanisms over the past 30 years. However, the eight-year enforcement hiatus may be coming to a close. In his speech, Commissioner Rosch noted that FTC “staff is currently investigating a variety of environmental product claims.”
The Commissioners remarks also highlighted some major themes that have emerged from the FTC’s on-going Green Guides review:
- Life Cycle Analysis (the examination of a product’s environmental impact from manufacturer through distribution and use to its ultimate disposal). Commissioner Rosch noted that the primary challenge for manufacturers is how to truthfully and accurately describe their practices. He singled out “hidden tradeoffs” as an issue. That is, manufacturers must be careful that an environmental improvement in one area does not result in worse environmental performance in another area.
- Biodegradability. The current Green Guides require break-down to occur in a reasonably short period of time under customary disposal conditions. Commissioner Rosch noted two issues with the use of these terms. First, how long do consumers think a reasonably short period is? Second, customary disposal for consumers, i.e., landfills, are generally not conducive to biodegrading.
- Recyclability. Commissioner Rosch cautioned manufacturers that recyclability claims must be qualified to account for any limitations on the availability of recycling.
- Sustainable and Renewable. Commissioner Rosch commented that the FTC will need to work out treatment of these claims in the Green Guides revisions. Many commenters have taken the position that such claims are too vague and general and should be prohibited unless related to a specific attribute. Others have commented that such terms have accepted definitions in certain industries and members of those industries should be able to use them.