FTC Requests Public Comment on Potential Green Guides Updates

The Federal Trade Commission ("FTC") is soliciting comments regarding the efficiency, costs, benefits, and regulatory impact of its Guides for the Use of Environmental Marketing Claims ("Green Guides").

On December 14, 2022, the FTC announced that it is seeking public comment to determine whether to retain, modify, or rescind the Green Guides. The Green Guides address the applicability of section 5 of the FTC Act to environmental advertising and labeling claims. Originally issued in 1992, and intended to provide guidance that helps marketers avoid potentially unfair or deceptive environmental claims, the Green Guides were last revised in 2012. 

In its announcement, the FTC indicates that it hopes to ensure that the Green Guides reflect changes in the marketplace and consumer perception over time. In particular, the FTC notes that public attention to environmental concerns, in part spurred by recent hot topics such as COVID-19 and climate change, has increased since the 2012 revision, and environmental marketing claims have likely increased as a result.

The FTC is seeking comment on an array of general questions related to the ongoing usefulness of the Green Guides and what modifications may be beneficial to modern consumers. The FTC has also requested comment on a number of specific claims, including:  

  • Compostable; 
  • Degradable; 
  • Ozone-safe/ozone-friendly; 
  • Recyclable; 
  • Recycled content; 
  • Energy use/energy efficiency; 
  • Organic; and 
  • Sustainable. 

One question posed appears to highlight the increase in net-zero commitments. The FTC requests comment on whether there is "any consumer research available regarding consumer perception of climate change-related claims such as 'net zero,' 'carbon neutral,' 'low carbon,' or 'carbon negative'?" Similarly, the FTC is seeking comment on whether the Green Guides guidance relating to carbon offsets should be revised or expanded to address other types of advertising claims related to carbon offsets and climate change. 

Furthermore, the FTC appears to be considering a rulemaking to establish independently enforceable requirements related to unfair and deceptive environmental claims. More information on what this rulemaking might entail is not yet available, but such a rulemaking would mark a turning point from the Green Guides, potentially turning previously unenforceable guidance into federally enforceable law. 

Comments will be accepted for 60 days after publication of the notice in the Federal Register, which is expected in mid-January 2023.


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