FTC seeks comments on potential updates to its Green Guides

Dec. 15, the Federal Trade Commission (FTC) announced that it is seeking public comment on potential updates and changes to the Guides for the Use of Environmental Claims, also known as the Green Guides. The Commission’s Green Guides are designed to help marketers avoid making environmental marketing claims that are unfair or deceptive under Section 5 of the FTC Act. The commission says it wants to update the guides based on increasing consumer interest in buying environmentally friendly products.

The Association of Plastic Recyclers (APR), Washington, says it intend to submit comments and to participate in the updating process. 

“Consumers are increasingly conscious of how the products they buy affect the environment and depend on marketers’ environmental claims to be truthful,” Bureau of Consumer Protection Director Samuel Levine says. “We look forward to this review process and will make any updates necessary to ensure the Green Guides provide current, accurate information about consumer perception of environmental benefit claims. This will both help marketers make truthful claims and consumers find the products they seek.”

The FTC first issued the Green Guides in 1992, with revisions issued in 1996, 1998 and 2012. They provide guidance on environmental marketing claims, including how consumers are likely to interpret particular claims and how marketers can substantiate these claims to avoid deceiving consumers.

The FTC says it is requesting general comments on the continuing need for the guides, their economic impact, their effect on the accuracy of various environmental claims and their interaction with other environmental marketing regulations. The commission also seeks information on consumer perception evidence of environmental claims, including those not in the guides currently.

Specific issues the FTC says it expects to get many public comments on include:

• carbon offsets and climate change – The current “Guides” provide guidance on carbon offset and renewable energy claims. The commission invites comments on whether the revised “Guides” should provide additional information on related claims and issues.

• the term “recyclable” – Among other things, the FTC seeks comments on whether it should change the current threshold that guides marketers on when they can make unqualified recyclable claims, as well as whether the “Guides” should address in more detail claims for products that are collected (picked up curbside) by recycling programs but not ultimately recycled.

• the term “recycled content” – Comments are requested on whether unqualified claims about recycled content, particularly claims related to “preconsumer” and “postindustrial” content, are widely understood by consumers, as well as whether alternative methods of substantiating recycled content claims may be appropriate.

• the need for additional guidance – The commission also seeks comment on the need for additional guidance regarding claims such as “compostable,” “degradable,” ozone-friendly,” “organic” and “sustainable, as well as those regarding energy use and energy efficiency.

A list of recent cases brought relating to topics covered by the guides can be found on the FTC’s website.

The commission vote approving the publication of a Federal Register notice announcing the opening of the public comment period was 4-0, with Chair Lina M. Khan issuing a separate statement that reads in part: “At a broad level, the questions focus on whether any aspects are outdated and in need of revision. For example, recent reports suggest that many plastics that consumers believe they’re recycling actually end up in landfills. One question, then, is whether claims that a product is recyclable should reflect where a product ultimately ends up, not just whether it gets picked up from the curb. I’m particularly interested in receiving comments, including consumer perception research, on relatively emerging environmental topics.”

The notice will be published in the Register in mid-January 2023, after which the FTC will accept comments for 60 days. Information about how to submit comments can be found in the Federal Register notice.

Steve Alexander, president and CEO of the APR has voiced the association’s support of the update, saying, “The FTC’s goal in updating the Green Guides should be to help consumers seeking to reduce waste [and] make informed choices about the products and packaging they buy and to ensure that companies make accurate marketing claims about the sustainability of their products.

“APR strongly urges the FTC to provide clear guidance on the terms ‘recyclable’ and ‘recycled content’ in the updated Green Guides. In considering these definitions, the FTC’s Green Guides should continue to reflect the facts on the ground and current consumer understanding of these terms, while also leaving room for the innovation and investment that is vital to the success of the industry.”

Alexander continues, “Specifically, the FTC should continue to be clear that unqualified ‘recyclable’ claims on packaging are only allowed when a substantial majority of consumers or communities have access to recycling facilities where the item is sold. At the same time, APR recommends that the Green Guides reflect ongoing investment and research by differentiating between those products that could be recyclable at scale and are on the path to meeting performance requirements and those products that are not recyclable at scale and have no pathway to get there.

“For ‘recycled content’ claims, the Green Guides should reflect consumer understanding of the recycling process,” he adds. “The FTC should make clear that marketers can only make unqualified claims of recycled content if the entire product or package on which the claim is displayed (excluding minor, incidental components) is made from postconsumer recycled material—products made from material used by households or individuals and placed in recycling bins or as part of a consumer recycling program. The FTC should not allow unqualified claims that products are recycled if they are made from ‘postindustrial’ material—manufacturing scraps or byproduct—or if the claim is based on ‘mass balance’ calculation.”

Mass balance calculations often are used for chemically recycled plastic inputs. In a 2021 position statement on chemical recycling, the APR writes that it “has the potential to expand opportunities for recycling of materials that are not recycled by mechanical processes today.”

The association adds, “Chemical recycling is not a replacement for mechanical or traditional recycling, but it is a complement to these processes for materials that are rarely recycled mechanically.”

Alexander says the APR will submit comments related to the Green Guides to the FTC and participate as a stakeholder in the Green Guides development process.