[Federal Register Volume 72, Number 227 (Tuesday, November 27, 2007)]
[Proposed Rules]
[Pages 66091-66093]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-23007]


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FEDERAL TRADE COMMISSION

16 CFR Part 260


Guides for the Use of Environmental Marketing Claims

AGENCY: Federal Trade Commission.

ACTION: Request for public comment; announcement of public meetings.

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SUMMARY: The Federal Trade Commission (``FTC'' or ``Commission'') 
requests public comment on its Guides for the Use of Environmental 
Marketing Claims (``Green Guides'' or ``Guides''). The Commission is 
soliciting comment as part of its systematic review of all current FTC 
rules and guides. The Commission also is announcing plans to host 
public meetings to explore developments in environmental and ``green 
energy-related'' marketing.

DATES: Written comments relating to the Green Guides review must be 
received by February 11, 2008. The first public meeting, ``Carbon 
Offsets and Renewable Energy Certificates,'' will be held on January 8, 
2008 in Washington, DC. Details, including location and registration 
information, are set forth in a separate Federal Register notice 
published concurrently. The Commission plans to announce additional 
environmental marketing public meetings at later dates.

ADDRESSES: Interested parties are invited to submit written comments 
relating to the Green Guides review. Comments should refer to ``Green 
Guides Regulatory Review, 16 CFR part 260, Comment, Project No. 
P954501'' to facilitate organization of comments. A comment filed in 
paper form should include this reference both in the text and on the 
envelope, and should be mailed or delivered to the following address: 
Federal Trade Commission/Office of the Secretary, Room H-135 (Annex B), 
600 Pennsylvania Avenue, NW., Washington, DC 20580. Comments containing 
confidential material must be filed in paper form, must be clearly 
labeled ``Confidential'', and must comply with Commission Rule 
4.9(c).\1\ The FTC is requesting that any comment filed in paper form 
be sent by courier or overnight service, if possible, because postal 
mail in the Washington area and at the Commission is subject to delay 
due to heightened security precautions.
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    \1\ The comment must be accompanied by an explicit request for 
confidential treatment, including the factual and legal basis for 
the request, and must identify the specific portions of the comment 
to be withheld from the public record. The request will be granted 
or denied by the Commission's General Counsel, consistent with 
applicable law and the public interest. See Commission Rule 4.9(C), 
16 CFR 4.9(c).
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    Comments filed in electronic form should be submitted by following 
the instructions on the web-based form at https://secure.commentworks.com/ftc-GreenGuidesReview. To ensure that the 
Commission considers an electronic comment, you must file it on that 
web-based form. You may also visit http://www.regulations.gov to read 
this notice, and may file an electronic comment through that Web site. 
The Commission will consider all comments that www.regulations.gov 
forwards to it.
    The FTC Act and other laws the Commission administers permit the 
collection of public comments to consider and use in this proceeding as 
appropriate. The Commission will consider all timely and responsive 
public comments that it receives, whether filed in paper or electronic 
form. Comments received will be available to the public on the FTC Web 
site, to the extent practicable, at http://www.ftc.gov. As a matter of 
discretion, the FTC makes every effort to remove home contact 
information for individuals from the public comments it receives before 
placing those comments on the FTC Web site. To read our policy on how 
we handle the information you submit--including routine uses permitted 
by the Privacy Act--please review the FTC's privacy policy, at http://www.ftc.gov/ftc/privacy.shtm.

FOR FURTHER INFORMATION CONTACT: Janice Podoll Frankle, Attorney, 202-
326-3022, or Laura Koss, Attorney, 202-326-2890, Division of 
Enforcement, Bureau of Consumer Protection, Federal Trade Commission.

SUPPLEMENTARY INFORMATION:

I. Background

    The Commission issued the Green Guides, 16 CFR part 260, to help 
marketers avoid making environmental

[[Page 66092]]

claims that are unfair or deceptive under Section 5 of the FTC Act, 15 
U.S.C. 45.\2\ Industry guides, such as these, are administrative 
interpretations of the law. Therefore, they do not have the force and 
effect of law and are not independently enforceable. The Commission can 
take action under the FTC Act, however, if a business makes 
environmental marketing claims inconsistent with the Guides. In any 
such enforcement action, the Commission must prove that the act or 
practice at issue is unfair or deceptive.
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    \2\ The Commission issued the Green Guides in 1992, 57 FR 36363, 
and subsequently revised them in 1996 (61 FR 53311) and 1998 (63 FR 
24240). The FTC also administers other rules and guides in the 
environmental and energy areas, pursuant to several federal statutes 
including the FTC Act. See Guide Concerning Fuel Economy Advertising 
for New Automobiles (16 CFR part 259), Appliance Labeling Rule (16 
CFR part 305), Fuel Rating Rule (16 CFR part 306), Alternative Fuel 
Vehicles Rule (16 CFR part 309), Recycled Oil Rule (16 CFR part 
311), and Labeling and Advertising of Home Insulation Rule (the ``R-
Value'' Rule) (16 CFR part 460).
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    The Green Guides outline general principles that apply to all 
environmental marketing claims and then provide guidance regarding 
specific environmental claims. For all claims, the Guides advise: That 
qualifications and disclosures be sufficiently clear and prominent to 
prevent deception; that marketers make clear whether their claims apply 
to the product, the package, or a component of either; that claims not 
overstate an environmental attribute or benefit, expressly or by 
implication; and that marketers present comparative claims in a manner 
that makes the basis for the comparison sufficiently clear to avoid 
consumer deception.
    The Guides then specifically address: general environmental benefit 
claims, such as ``environmentally friendly''; degradable claims; 
compostable claims; recyclable claims; recycled content claims; source 
reduction claims; refillable claims; and ozone safe/ozone friendly 
claims. For each of these claims, the Green Guides explain how 
reasonable consumers are likely to interpret them. The Guides also 
describe the basic elements necessary to substantiate claims within 
each category and present options for qualifying specific claims to 
avoid deception.\3\ The illustrative qualifications provide ``safe 
harbors'' for marketers who want certainty about how to make 
environmental claims, but do not represent the only permissible 
approaches to qualifying a claim.
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    \3\ The Guides do not, however, establish standards for 
environmental performance or prescribe testing protocols.
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II. Regulatory Review of the Green Guides

    The Commission reviews all of its rules and guides periodically to 
examine their efficacy, costs, and benefits; and to determine whether 
to retain, modify, or rescind them. This notice commences the 
Commission's review of the Green Guides.

A. General Areas of Interest for FTC Review

    As part of its review, the Commission is seeking comment on a 
number of general issues, including the continuing need for the Guides 
and their economic impact, the effect of the Guides on the accuracy of 
various environmental claims, and the interaction of the Guides with 
other environmental marketing regulations. The Commission believes that 
this review is important to ensure that the Guides are appropriately 
responsive to any changes in the marketplace. Since the Commission's 
last revisions in 1998, sellers and marketers increasingly have 
publicized the environmental attributes of certain products, packaging, 
services, and manufacturing processes. Moreover, sellers and marketers 
are making new green claims, including those regarding renewable 
energy, carbon offsets, and sustainability, among others, that are not 
currently covered by the Green Guides.
    The Commission also seeks to ensure that the Guides are 
appropriately responsive to any changes in consumer perception of 
environmental claims. As the Commission recognized in originally 
issuing the Guides, science and technology in the environmental area 
are constantly changing and new developments might affect consumer 
perception. Thus, the Commission solicits specific consumer survey 
evidence and consumer perception data addressing environmental claims, 
including claims not currently covered by the Guides.

B. Specific Areas of Interest for FTC Review

    Since the last revisions to the Guides in 1998, the Commission 
occasionally has received informal input regarding the efficacy of its 
guidance on specific claims as well as requests for clarification 
through additional examples. Some of the questions included in this 
notice, therefore, address claim-specific issues. By including these 
issues, the Commission intends to facilitate comment, and the inclusion 
or exclusion of any issue is no indication of the Commission's intent 
to make any specific modifications to the Guides.

III. Issues for Comment

    The Commission requests written comment on any or all of the 
following questions. The Commission requests that responses to its 
questions be as specific as possible, including a reference to the 
question being answered, and reference to empirical data or other 
evidence wherever available and appropriate.

A. General Issues

    (1) Is there a continuing need for the Guides? Why or why not?
    (2) What benefits have the Guides provided to consumers? What 
evidence supports the asserted benefits?
    (3) What modifications, if any, should be made to the Guides to 
increase their benefits to consumers?
    (a) What evidence supports your proposed modifications?
    (b) How would these modifications affect the costs the Guides 
impose on businesses, and in particular on small businesses?
    (c) How would these modifications affect the benefits to consumers?
    (4) What impact have the Guides had on the flow of truthful 
information to consumers and on the flow of deceptive information to 
consumers?
    (5) What significant costs have the Guides imposed on consumers? 
What evidence supports the asserted costs?
    (6) What modifications, if any, should be made to the Guides to 
reduce the costs imposed on consumers?
    (a) What evidence supports your proposed modifications?
    (b) How would these modifications affect the benefits provided by 
the Guides?
    (7) Please provide any evidence that has become available since 
1998 concerning consumer perception of environmental claims, including 
claims not currently covered by the Guides. Does this new information 
indicate that the Guides should be modified? If so, why, and how? If 
not, why not?
    (8) Please provide any evidence that has become available since 
1998 concerning consumer interest in particular environmental issues. 
Does this new information indicate that the Guides should be modified? 
If so, why, and how? If not, why not?
    (9) What benefits, if any, have the Guides provided to businesses, 
and in particular to small businesses? What evidence supports the 
asserted benefits?
    (10) What modifications, if any, should be made to the Guides to 
increase their benefits to businesses, and in particular to small 
businesses?

[[Page 66093]]

    (a) What evidence supports your proposed modifications?
    (b) How would these modifications affect the costs the Guides 
impose on businesses, and in particular on small businesses?
    (c) How would these modifications affect the benefits to consumers?
    (11) What significant costs, including costs of compliance, have 
the Guides imposed on businesses, and in particular on small 
businesses? What evidence supports the asserted costs?
    (12) What modifications, if any, should be made to the Guides to 
reduce the costs imposed on businesses, and in particular on small 
businesses?
    (a) What evidence supports your proposed modifications?
    (b) How would these modifications affect the benefits provided by 
the Guides?
    (13) What evidence is available concerning the degree of industry 
compliance with the Guides?
    (a) To what extent has there been a reduction in deceptive 
environmental claims since the Guides were issued? Please provide any 
supporting evidence. Does this evidence indicate that the Guides should 
be modified? If so, why, and how? If not, why not?
    (b) To what extent have the Guides reduced marketers' uncertainty 
about which claims might lead to FTC law enforcement actions? Please 
provide any supporting evidence. Does this evidence indicate that the 
Guides should be modified? If so, why, and how? If not, why not?
    (14) Are there claims addressed in the Guides on which guidance is 
no longer needed? If so, explain. Please provide supporting evidence.
    (15) What potentially unfair or deceptive environmental marketing 
claims, if any, are not covered by the Guides?
    (a) What evidence demonstrates the existence of such claims?
    (b) With reference to such claims, should the Guides be modified? 
If so, why, and how? If not, why not?
    (16) What modifications, if any, should be made to the Guides to 
account for changes in relevant technology or economic conditions? What 
evidence supports the proposed modifications?
    (17) Do the Guides overlap or conflict with other federal, state, 
or local laws or regulations? If so, how?
    (a) What evidence supports the asserted conflicts?
    (b) With reference to the asserted conflicts, should the Guides be 
modified? If so, why, and how? If not, why not?
    (c) Is there evidence concerning whether the Guides have assisted 
in promoting national consistency with respect to the regulation of 
environmental claims? If so, please provide that evidence.
    (18) Are there international laws, regulations, or standards with 
respect to environmental marketing claims that the Commission should 
consider as it reviews the Guides, such as the International 
Organization for Standardization (``ISO'') 14021, Environmental Labels 
and Declarations--Self-Declared Environmental Claims? If so, what are 
they? Should the Guides be modified in order to harmonize with these 
international laws, regulations, or standards? If so, why, and how? If 
not, why not?

B. Specific Issues

    (1) Should the Guides be revised to include guidance regarding 
renewable energy or carbon offset claims? If so, why, and what guidance 
should be provided? If not, why not?
    (a) What evidence supports making your proposed revision(s)?
    (b) What evidence is available concerning consumer understanding of 
the terms ``renewable energy'' and ``carbon offset''?
    (c) What evidence constitutes a reasonable basis to support each 
such claim?
    (2) Should the Guides be revised to include guidance regarding 
``sustainable'' claims? If so, why, and what guidance should be 
provided? If not, why not?
    (a) What evidence supports making your proposed revision(s)?
    (b) What evidence is available concerning consumer understanding of 
the term ``sustainable''?
    (c) What evidence constitutes a reasonable basis to support a 
``sustainable'' claim?
    (3) Should the Guides be revised to include guidance regarding 
``renewable'' claims? If so, why, and what guidance should be provided? 
If not, why not?
    (a) What evidence supports making your proposed revision(s)?
    (b) What evidence is available concerning consumer understanding of 
the term ``renewable''?
    (c) What evidence constitutes a reasonable basis to support a 
``renewable'' claim?
    (4) The Guides provide that a recycled content claim may be made 
only for materials that have been recovered or otherwise diverted from 
the solid waste stream, either during the manufacturing process or 
after consumer use. Do the current Guides provide sufficient guidance 
for recycled content claims for textile products? If so, why? If not, 
why not, and what guidance should be provided? What evidence supports 
making your proposed revision(s)?
    (5) The Guides suggest that recycled content be calculated on the 
annual weighted average of a product. Should the Guides be revised to 
include alternative method(s) of calculating recycled content, e.g., 
based on the average recycled content within a product line, or an 
average amount of recycled content used by a manufacturer across many 
or all of its product lines? If so, why, and what is the appropriate 
method(s) of calculation? If not, why not? What evidence supports 
making your proposed revision(s)?
    (6) The Guides provide that an unqualified claim that a product or 
package is degradable, biodegradable or photodegradable should be 
substantiated by competent and reliable scientific evidence that the 
entire product or package will completely break down and return to 
nature within a ``reasonably short period of time after customary 
disposal.'' Should the Guides be revised to provide more specificity 
with respect to the time frame for product decomposition? If so, why, 
and what should the time frame be? If not, why not? What evidence 
supports making your proposed revision(s)?

IV. Public Meetings

    Because of the wide-reaching issues involved in environmental 
marketing, the Commission also believes it would be beneficial to 
facilitate public dialogue on select issues by hosting public meetings. 
Commission staff will review and consider information gathered at these 
meetings in addition to the public comments in formulating its final 
recommendation to the Commission concerning the Green Guides review. As 
noted above, the first public meeting, to be held on January 8, 2008, 
will address carbon offsets and renewable energy certificates. The 
Commission plans to announce additional public meetings addressing 
other green topics, such as green labeling and advertising developments 
and consumer perception of green marketing claims.

List of Subjects in 16 CFR Part 260

    Advertising, Environmental claims, Labeling, Trade practices.

    Authority: 15 U.S.C. 41-58.

    By direction of the Commission.
Donald S. Clark,
Secretary.
 [FR Doc. E7-23007 Filed 11-26-07; 8:45 am]
BILLING CODE 6750-01-P