The updated Green Guides will likely impact legal liability for environmental marketing claims in the years to come.
By Jean-Philippe Brisson, Paul A. Davies, Sarah E. Fortt, Julia A. Hatcher, Betty M. Huber, Robin M. Hulshizer, Michael Dreibelbis, Michael D. Green, Danny Dvorak, Brett Frazer, Austin J. Pierce, Angela Walker, and Jacqueline Y. Zhang
Latham & Watkins presents a blog series on the Federal Trade Commission’s Guides for the Use of Environmental Marketing Claims (Green Guides). This first post discusses the evolving focus areas as well as the enforcement and litigation risks of the Green Guides.
On December 20, 2022, the Federal Trade Commission (FTC) published a notice (hereinafter, the 2022 Notice) requesting public comments on its Guides for the Use of Environmental Marketing Claims (commonly known as the Green Guides or the Guides). The FTC reviews its rules and guides on a 10-year schedule, and its publication of the 2022 Notice is in accordance with the agency’s regulatory review cycle. The Guides were first issued in 1992 and most recently revised in 2012.
The public can submit comments by using the Federal Register online submission form or by mailing comments to the FTC. The public comment period will close on February 21, 2023.
The FTC publishes the Green Guides in part to support marketers and companies in their environmental advertising decisions. Adherence to the Guides can also help companies avoid litigation involving deceptive environmental claims. Further, the Guides can inform companies in their supply chain decision-making. Per the FTC, the Guides are designed to provide guidance on (1) general principles that apply to all environmental marketing claims; (2) how consumers are likely to interpret particular claims and how marketers can substantiate these claims; and (3) how marketers can qualify their claims to avoid deceiving consumers.