Free Of Claims
“Free of” claims (i.e., claims that a product does not contain a particular harmful substance), were not included as a specific section of the old guidelines, which only addressed these claims in examples. In the 2010 proposed revisions, the FTC recommended creating a section dedicated to free of claims. Acting on this recommendation, the revised Green Guides note that truthful free of claims may actually be misleading in two instances. First, a free of claim can be misleading if made regarding a substance that has not been associated with the product category -- for example, it would be misleading to state that a product was “formaldehyde free” if formaldehyde was never used for the product category. Second, a truthful free of claim may also be misleading if the product contains other substances posing the same or similar environmental risks. Advertisers should carefully craft claims to avoid these concerns.
The revised Green Guides also now reflect a three-part analysis, not included in the 2010 proposed revisions, for determining when a free of claim may be acceptable even though the product contains some amount of a substance. A free of claim may be made even if a product actually contains some amount of a substance if: (1) the product contains only a trace amount or background level of the substance; (2) the amount of the substance present does not actually cause harm that consumers typically associate with the substance; and (3) the substance was not intentionally added to the product.
Like free of claims, the old guidelines only briefly touched upon non-toxic claims by way of example. The revised Green Guides, reflecting the 2010 proposed revisions, contain a section dedicated to non-toxic claims. Unqualified non-toxic claims should be made only if backed by competent and scientific evidence that a product, package, or service is non-toxic both to humans and the environment.
Unlike free of claims, the revised Green Guides do not contain a specific exception for trace toxicity in a product. But, in its Statement of Basis and Purpose accompanying the revised Green Guides, the Commission states that advertisers may still claim that a product is non-toxic if it contains a toxic substance at a level that is not harmful to humans or the environment.
Renewable Energy Claims
Guidance on renewable energy claims is new to the revised Green Guides -- the old guidelines did not address the topic, which was first tackled in the 2010 proposed revisions. In accordance with the proposed revisions, the revised Green Guides provide that advertisers should not make unqualified claims that a product is “made with renewable energy” unless all, or virtually all, of the significant manufacturing processes involved in making the product are powered by renewable energy. If energy used to make the product derives from fossil fuels, unqualified renewable energy claims are generally not appropriate; however, in an addition to the proposed revisions, the revised Green Guides allow unqualified renewable energy claims if the manufacturer has purchased renewable energy certificates (“RECs”) to match its fossil fuel use. (Way back in 2008, we wrote a client advisory on the FTC’s workshop on RECs and carbon offsets, which discusses issues to watch out for when purchasing and using RECs.)
The revised Green Guides also provide that advertisers should qualify a renewable energy claim if reasonable consumers would otherwise interpret the claim to imply that a product is made with recyclable or renewable materials when that is not the case. Although the 2010 proposed revisions would have required advertisers to disclose the source of renewable energy in order to prevent this type of misconception, that disclosure is not mandated under the revised Green Guides. Instead, disclosing the energy source is only one method advertisers might consider to clarify that their renewable energy claim is not also a recyclable or renewable materials claim. But, the Commission recommends that should advertisers choose another method, they should first “test consumer perception of their claims in the context of their advertisements” to avoid scrutiny.
Renewable Materials ClaimsRenewable materials claims are also new to the guidelines, and were first discussed in the 2010 proposed revisions. Similar to renewable energy claims, the revised Green Guides explain that reasonable consumers may interpret unqualified renewable materials claims as meaning that a product is made with recycled content, or is recyclable or degradable. Advertisers thus may need to qualify renewable materials claims to prevent such an interpretation if incorrect. Under the revised Green Guides, this is best accomplished by identifying the renewable material used and explaining why it is renewable.
Notably absent from both the proposed revisions and the revised Green Guides is a definition of renewable materials. The FTC explained in its Statement of Basis and Purpose that because the results of its consumer perception study showed a “disconnect” between scientific and technical definitions of renewable materials and consumer understanding of the term, it could not define renewable materials with a technical or scientific definition in the Guides. Instead, advertisers should keep in mind that they must be responsible for all reasonable consumer interpretations of their claims.
As the FTC noted in its press release accompanying the revised Green Guides, the introduction of environmentally friendly products “is a win for consumers who want to purchase greener products and producers who want to sell them.” But, according to the FTC this “win-win” only occurs if advertisers’ green claims are truthful and not misleading. When crafting green claims in relatively new areas like renewable energy and materials, advertisers should be particularly sensitive to ensure that they account for the common consumer misconceptions discovered in the FTC’s consumer perception study.
- Matthew Shultz and Joanna Persio