Former FTC Director Warns About Green Claims

New York, NY, March 19, 2012 -- The Federal Trade Commission is increasingly taking a closer look at marketers’ “green claims,” according to LeClairRyan attorney and 17-year FTC veteran Thomas A. Cohn in a March 8 column at CorporateComplianceInsights.com.
 
In the column, Cohn, the former director of the FTC’s Northeast Region, warns that the commission has stepped up its search for “unfair, deceptive or unsubstantiated environmental claims” under the mandate of the FTC Act.
 
Companies can find guidance about making green claims in the current edition of the so-called Green Guides, which are available on the FTC’s website, notes Cohn, who adds that they are undergoing a major revision.

“A high-ranking source within the agency says the final guides most likely will not be issued for several months or more,” he explains. “But companies would do well to begin adhering to the proposed revisions before the final guidance is issued.”
 
In the column, Cohn offered four tips to help keep green marketing efforts in compliance with the FTC’s current thinking.
 
1. Be clear and specific. “When it comes to environmental claims, there is no place for ‘the fine print,’” Cohn warns. “The proposed revisions strongly emphasize that all marketing messages should be clear and prominent.
 
2. Be careful about using environmental certifications and seals of approval in advertising. “The basic message here is that any sort of certification or seal is equal to an endorsement and, as such, is covered by the previously issued FTC Endorsement Guides,” Cohn explains.
 
3. Keep marketing and compliance departments on the same page. With the FTC scrutinizing environmental marketing claims as never before, it is important for marketers to work closely with compliance officers, according to Cohn. “A cardinal principle in FTC advertising law is that substantiation for a claim must be on hand before the claim is made,” he cautions.
 
4. Check the guides before using a green term.  While terms like “free of,” “nontoxic,” “recyclable” and “compostable” might seem straightforward enough, “the proposed revisions to the Green Guides drill into the specific, legally acceptable usage of such language in marketing materials,” Cohn writes. “Before you say something is ‘ozone-safe’ or ‘degradable,’ check the guidance to find out,” he advises.