According to Kermit the Frog, “It’s not easy being green.” But for members of the promotional products industry willing to acquaint themselves with the Federal Trade Commission’s Guides for the Use of Environmental Marketing Claims, it’s not hard to keep your claims clean.
The FTC, the nation’s consumer protection agency, is the primary cop on the truth-in-advertising beat. Under Section 5 of the FTC Act, the same standards of truthfulness that apply to all advertising claims cover environmental representations, too. For example, the FTC looks at ads from the perspective of reasonable consumers. The key consideration isn’t what a company intended to convey through an ad, but rather the “net impression” consumers took from it. That means that a claim can be literally truthful and yet still misleading in what it conveys to prospective customers.
Furthermore, before disseminating an ad, companies must have “competent and reliable evidence” to substantiate all objective product claims. Claims about health, safety or environmental effects—whether in advertising, on packaging, in marketing materials, on websites or on products themselves—generally need to be supported with competent and reliable scientific evidence. If a representation is true only in certain circumstances—that’s what the FTC calls a “qualified claim”—the onus is on the company to explain this to consumers in language they’ll understand. Thinking about relegating important information to a footnote or buried hyperlink? Think again. To be effective, disclosures need to be “clear and conspicuous.” It’s doubtful that fine print or an obscure link will be sufficient to cure an otherwise deceptive claim.
The Green Guides offer advice for manufacturers, distributors and retailers about how to make truthful, non-misleading statements about the environmental attributes of their products. When companies support their green claims with solid proof, it’s a net gain for buyers, sellers and Planet Earth. But questionable promises hit consumers in the pocketbook and unfairly penalize businesses that work hard to walk the green line.
Read the Green Guides for practical insights on how to use terms such as “recycled,” “recyclable,” “degradable,” “non-toxic” and “free of” truthfully. The guides include examples that answer the questions businesses often ask, but here’s a shorthand explanation of how some of the most common phrases are defined.
- The Green Guides make clear that it’s deceptive to represent, directly or by implication, that an item contains recycled content unless it’s made of materials that have been recovered or otherwise diverted from the waste stream either during the manufacturing process (pre-consumer) or after consumer use (post-consumer). Consult the guides for advice if the product in question contains a mix of materials.
- A product or packaging shouldn’t be called recyclable unless it can be collected, separated or otherwise recovered from the waste stream through an established recycling program for reuse or use in manufacturing another item. Of course, the availability of recycling facilities for certain materials varies from place to place. The Green Guides offer guidance on how national marketers can address that issue.
- Planning to say your product is degradable, biodegradable, photodegradable or some other variation? Marketers may make an unqualified degradable claim only if they can prove that “the entire product or package will completely break down and return to nature within a reasonably short period of time after customary disposal.” How long is that “reasonably short period of time” for complete decomposition? One year, according to the Green Guides. Items destined for landfills, incinerators or recycling facilities won’t degrade within that time. That’s why advertisers should do their homework before making blanket degradability claims.
Non-toxic. Claiming (or implying) that a product is non-toxic likely sends the message to consumers that it’s non-toxic both for humans and for the environment generally. If a company makes a non-toxic claim, it needs sound science to support both of those promises.
“Free of.” Many consumers choose to avoid products that contain certain substances. If you want to highlight that your product is “free of” something, the first step is to make sure the claim is true. But prudent marketers don’t stop there. A truthful claim that a product is free of a substance may still be deceptive if it contains something that poses an environmental risk similar to the ingredient that isn’t present. It also may be misleading to tout that a product is “free of” something if that substance isn’t associated with the product category in the first place. What if a product contains a miniscule amount of the material? As a general rule, marketers can make a “free of” claim if the product doesn’t have more than a trace amount or background level of the constituent, if the amount present doesn’t cause the harm that consumers typically associate with it and if it wasn’t added to the product intentionally.
Some advertisers may try to skirt the issue by avoiding terms specifically defined in the Green Guides and opt instead for broad, hard-to-pin-down phrases such as “eco-smart,” “good for the earth,” or the like. This would be a mistake. The Green Guides caution against broad, unqualified environmental benefit claims because of the inherent concern about deception. For example, a standalone phrase such as “eco-friendly” probably conveys to consumers that the product has far-reaching environmental benefits and may imply that the product has no negative environmental impact. Because it’s highly unlikely the marketer can back up those claims with competent and reliable scientific evidence, the use of the term may be deceptive without additional truthful information.
What about conveying environmental claims through third-party seals of approval or certifications? Avoid them if they don’t clearly convey the basis for the certification. Of course, even if you have a third-party certification, you still need to substantiate all expressed and implied claims that reasonable consumers take from your ads, marketing materials, labels, etc.
Here’s one final fact that should attract the attention of industry members at every stage of the supply chain: Over the years, the FTC has challenged misleading environmental claims by the supplier of the raw material, the manufacturer and the retailer that ultimately sold the product to consumers. Of course, the facts of each case are different, but it’s rarely a defense to assert that substantiation was someone else’s responsibility. That’s why it’s unwise simply to pass along a green claim made by a supplier or manufacturer without evaluating its accuracy.
Before making environmental claims, advertisers should consider the Green Guides carefully and consult other nuts-and-bolts compliance materials available at the Environmental Marketing section of the FTC’s Business Center at www.business.ftc.gov.
Lesley Fair is a senior attorney with the Federal Trade Commission’s Bureau of Consumer Protection, where she has represented the FTC in numerous investigations of false advertising and fraud. She now specializes in industry education and blogs at the FTC’s Business Center, business.ftc.gov. Fair was a featured speaker at PPAI’s Product Safety Summit in August.
>>Watch And Learn
PPAI offers three 60-minute, on-demand webinars to educate suppliers and distributors on the green issue:
- Overcome Barriers To Going Green
- Going Green And FTC Guide Updates
- Going Green Guidance
These webinars are free for PPAI members, $15 for nonmembers. Find them at www.ppai.org under Education/E-Learning.