FTC Green Guides – Not Just Guidelines Anymore

Recycling symbolIn my last post, I explained that the Federal Trade Commission’s Green Guides are not officially law, (although they are backed by Section 5 of the FTC Act, which is.)

However, this is not 100% true.  Sometimes the Green Guides are law. It just depends what state you’re in.

As it happens, individual states are starting to hop on the anti-greenwashing bandwagon. And it turns out that the Green Guides provide a very easy way for them to amend state law to prohibit misleading or deceptive environmental marketing claims.

For instance, take a look at this excerpt from California’s Business and Professions Code Section 17580-17581:

17580.5.  (a) It is unlawful for any person to make any untruthful, deceptive, or misleading environmental marketing claim, whether explicit or implied. For the purpose of this section, “environmental marketing claim” shall include any claim contained in the “Guides for the Use of Environmental Marketing Claims” published by the Federal Trade Commission.

(b) It shall be a defense to any suit or complaint brought underthis section that the person’s environmental marketing claims conform to the standards or are consistent with the examples contained in the “Guides for the Use of Environmental Marketing Claims” published by the Federal Trade Commission.

Or this one, from Maine’s statues governing waste reduction and recycling:

  A person who labels, advertises or promotes a product in violation of guidelines for the use of environmental marketing claims published by the Federal Trade Commission in 16 Code of Federal Regulations, Part 260…commits a violation of the Maine Unfair Trade Practices Act.

Minnesota’s 2012 statutes also require that marketers conform to the Green Guides “regarding general environmental benefits claims, claims that a product or package is degradable, compostable, recyclable, or contains recycled content, and claims relating to source reduction, refillability, or ozone safety” – but only if the claim is made “in an attempt to influence purchasing decisions by end users of the product.” (This is actually an important distinction. It allows those farther up the supply chain a lot more leeway in their claims.)

Finally, the State of Rhode Island’s Environmental Marketing Act is little more than a wholesale adoption of the Green Guides into state law. Easy, peasy.

So what does it matter, if the Guides are already federally enforceable under Section 5?

Well, attorneys Annie Mullin and Dan Deeb of Schiff Hardin believe “there will be an increase in private party actions because marketers have more ammunition to bring actions against a competitor if the competitor is making a deceptive green claim.”

Not to mention actions brought against companies by concerned private citizens. And state endorsement simply make it that much easier for legal actions to take place.

Just another reason to take the Green Guides seriously.

 

Want to know more about how you can be Green Guide compliant? Request a complimentary copy of my two-part report, “The FTC Green Guides Made Simple: A Companion Guide for Achieving Green Marketing Compliance.”  It’s a must-have for anyone involved in marketing eco-friendly products or services.  It’s scheduled for release in just a few days, and you can be one of the first to get it! Just contact me and ask for your free copy of the “Green Guides Made Simple.”

 

 

photo credit: artbymags via photopin cc

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