- October 11, 2012
- Posted by: Seth Heyman
- Category: Marketing & Advertising Law
In today’s eco-conscious marketplace, many companies have successfully boosted their sales by claiming that their products or packages are “eco-friendly,” “green” or “biodegradable”. However, such general environmental benefit claims are viewed by the Federal Trade Commission (FTC) as possibly deceptive, because consumers are likely to perceive them as claiming that every aspect of the product it is good for every aspect of the environment.
The FTC offers guidelines (“Green Guides”) to marketers desiring to make general or specific environmental claims. Marketers should take care to follow these guidelines when making general or specific environmental claims.
The guidelines are broken down into categories as follows:
Certifications & Seals of Approval
Consumers respond to certifications and seals of approval included on packaging to such a degree that the FTC has established a separate set of endorsement guidelines to govern their use. Under those rules, the marketer must disclose any material connections to the certifying organization and any information that may affect the credibility of the certification or seal. Last but not least, seals or certifications may be viewed as general environmental benefit claims all by themselves, so marketers should ensure that they properly qualify the claims as described above.
The Green Guides set a high bar for making compostable claims for both products and packaging. Because many products and packages are made of multiple materials that compost at different rates and degrees, compostable claims should be qualified. Without qualifying language, marketers must be able to substantiate that all materials in the product and packaging will break down into “usable compost” at the same rate of time as other materials with which it will be composted. In addition, there must be an appropriate composting facility available to a substantial majority of individuals to whom the product is marketed. If such a facility is not available to a substantial majority, or the item will not compost at the appropriate rate of time, any compostable claims must be qualified accordingly.
Any claim that a product is “bio-degradable” must be backed by scientific evidence that the product will completely decompose within one year after being disposed of in a customary fashion. Without such evidence, qualifying language must accompany the claim to avoid deceiving consumers about the ability of the product to degrade when disposed of in a customary fashion and “the rate and extent of degradation.”
Generalized “free of [insert substance here]” claims should not be made where the product is free of one substance, but contains another, equally harmful substance. In addition, a “free of” claim should be avoided if the product does not normally include the substance with which the claim purports it is “free of.”
Care should be exercised whenever making claims that a product is non-toxic. From the FTC’s perspective, such claims convey “that a product, package, or service is non-toxic both for humans and for the environment generally.” If your product is nontoxic but breaks down into toxic materials in the waste stream, the claim should be clearly and prominently clarified to avoid deception.
General “ozone-safe” claims convey the impression that a product is safe for the “atmosphere as a whole.” If the claim directly or by implication represents that a product or package is safe for the atmosphere, the marketer must have substantiation to support such a claim.
Properly claiming that a product is “recyclable” requires special attention. Before making such a claim, the product or packaging for which the claim is being made must be able to be “collected, separated, or otherwise recovered from the waste stream through an established recycling program for reuse or use in manufacturing or assembling another item.” In other words, the entire product or packaging must be recyclable through a recycling program available to at least 60% of consumers to whom the item is marketed. If recycling facilities are not available to that extent to the targeted demographic, the “recyclable” claim must be qualified accordingly.
When claiming that a product is comprised of recycled content, the product in question must contain materials that are “used, reconditioned, [or] re-manufactured.” This means that the recycled materials must be diverted from the waste stream either during or after the manufacture of another product. Moreover, unless the entire product is composed of recycled content, the claim must be properly qualified.
To be able to claim that a product is manufactured using “renewable energy” a marketer must be able to demonstrate that the entire product is manufactured in a facility powered by renewable energy sources such as wind or solar. If only a portion of the product is manufactured using renewable energy, the claim must be qualified accordingly unless the marketer purchases renewable energy certificates to match any non-renewable energy used in the manufacture of the product. The FTC also recommends that marketers specify the source of renewable energy (e.g., wind or solar).
Any “now with less [harmful substance]” claim associated with a product must be qualified and substantiated to avoid consumer deception. For example, a claim such as “now made with 50% less high-fructose corn syrup” would only be appropriate if the marketer can substantiate that the earlier version of the product contained 50% more corn syrup by weight or volume.
In order to avoid the possibility of an FTC enforcement action, marketers desiring to tout the environmental benefits of their products should carefully review any and all claims they desire to make to ensure that they are substantiated.
Instead of using a general environmental benefit term, marketers should qualify the statement to avoid the possibility of deception by clarifying the environmental benefit. In other words, if your product is “eco-friendly,” tell the consumer why. Adding “Made with recycled materials” to “Eco Friendly” makes the statement easier to understand and less likely to mislead consumers.