By Robert L. Magielnicki

Many marketers of OTC drugs and devices, cosmetics, foods and dietary supplements make claims with regard to the content of their products and/or the packaging for their products. and their fate in or effect on the environment. These claims are regulated by the Federal Trade Commission (“FTC”) and its “false and misleading” authority found in Section 5 of the Federal Trade Commission Act. The FTC first issued its guidance on these rules in 1992, and revised them in 1996 and 1998.
 

Observing that, in recent years, businesses have increasingly used "green" marketing to capture customers’ attention, on October 6, 2010, the FTC proposed revisions to the guidance it gives marketers to help them avoid making misleading marketing claims. The proposed revisions to the FTC’s "Guides for the Use of Environmental Marketing Claims" or "Green Guides" propose revisions to claims currently addressed as well as guidance for claims not currently addressed by the Guides.

Claims currently addressed by the Guides for which the FTC proposes revisions include:
 

  • General environmental benefit
     
  • Certifications and seals of approval
     
  • Degradable
     
  • Compostable
     
  • Ozone-safe/ozone-friendly
     
  • Recyclable
     
  • Free-of/Non-toxic

In addition, the FTC proposes guidance on the following claims not presently addressed by the Guides:
 

  • Made with renewable materials
     
  • Made with renewable energy
     
  • Carbon offsets

Copies of the FTC’s press release, Summary of Proposal and proposed revised Guides can be found at www.ftc.gov/opa/2010/10/greenguide.shtm. The FTC is accepting comments on its proposal until December 10, 2010, before finalizing the changes.

Authored By:

Robert L. Magielnicki
(202) 218-0002
RMagielnicki@sheppardmullin.com