[Federal Register Volume 87, Number 243 (Tuesday, December 20, 2022)]
[Proposed Rules]
[Pages 77766-77770]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-27558]
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FEDERAL TRADE COMMISSION
16 CFR Part 260
RIN 3084-AB15
Guides for the Use of Environmental Marketing Claims
AGENCY: Federal Trade Commission.
ACTION: Regulatory review; request for public comment.
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SUMMARY: Pursuant to its decennial regulatory review schedule, 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 comments
about the efficiency, costs, benefits, and regulatory impact of the
Guides to determine whether to retain, modify, or rescind them. All
interested persons are hereby given notice of the opportunity to submit
written data, views, and arguments concerning the Guides.
DATES: Comments must be received on or before February 21, 2023.
ADDRESSES: Interested parties may file a comment online or on paper, by
following the instructions in the Request for Comment part of the
SUPPLEMENTARY INFORMATION section below. Write ``Green Guides Review,
Matter No. P954501'' on your comment, and file your comment online at
https://www.regulations.gov/, by following the instructions on the web-
based form. If you prefer to file your comment on paper, mail your
comment to the following address: Federal Trade Commission, Office of
the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex J),
Washington, DC 20580.
FOR FURTHER INFORMATION CONTACT: Hampton Newsome (202-326-2889) or
Julia Solomon Ensor (202-326-2377), Attorneys, Division of Enforcement,
Bureau of Consumer Protection, Federal Trade Commission, 600
Pennsylvania Avenue NW, Washington, DC 20580.
SUPPLEMENTARY INFORMATION:
I. The Green Guides
First issued in 1992 and most recently revised in 2012, the
Commission's Guides for Use of Environmental
[[Page 77767]]
Marketing Claims, 16 CFR part 260 (``Green Guides'' or the ``Guides''),
address the applicability of section 5 of the FTC Act, 15 U.S.C. 45(a)
(``section 5'') to environmental advertising and labeling claims.\1\
The Green Guides outline general principles applicable to all
environmental marketing claims, and provide specific guidance regarding
many common environmental benefit claims. For each claim covered, the
Guides: (1) explain how reasonable consumers likely interpret it; (2)
describe the basic elements necessary to substantiate it; and (3)
present options for qualifications to avoid deception.\2\
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\1\ The Commission issued the Green Guides in 1992 (57 FR 36363
(Aug. 13, 1992)), and subsequently revised them in 1996 (61 FR 53311
(Oct. 11, 1996)), 1998 (63 FR 24240 (May 1, 1998)), and 2012 (77 FR
62122 (Oct. 11, 2012)). The FTC administers several other
environmental and energy-related rules and guides. See Guide
Concerning Fuel Economy Advertising for New Automobiles (16 CFR part
259), Energy Labeling Rule (16 CFR part 305), Fuel Rating Rule (16
CFR part 306), Alternative Fuels and Alternative Fueled Vehicles
Rule (16 CFR part 309), Recycled Oil Rule (16 CFR part 311), and
Labeling and Advertising of Home Insulation Rule (16 CFR part 460).
\2\ The Guides do not establish standards for environmental
performance or prescribe testing protocols.
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Although the illustrative qualifications provide examples for
marketers seeking to make non-deceptive claims, they do not represent
the only permissible approaches. As administrative interpretations of
the law, the Guides themselves are not enforceable. In any enforcement
action, the Commission must prove the challenged act or practice is
unfair or deceptive in violation of section 5.
II. Regulatory Review of the Green Guides
The Commission reviews all of its rules and guides periodically to:
(1) examine their efficacy, costs, and benefits; and (2) determine
whether to retain, modify, or rescind them. The Commission completed
its most recent Green Guides review a decade ago (77 FR 62122 (Oct. 11,
2012)). With the present document, the Commission commences a new
review.
The Commission seeks comment on several general issues, which are
addressed in section III.A. of this document, including the continuing
need for the Guides, their economic impact, and their effect on the
accuracy of various environmental claims. section III.A. also seeks
comment on the Guides' interaction with other environmental marketing
regulations, and whether the Commission should consider rulemaking to
establish independently enforceable requirements related to unfair and
deceptive environmental claims. Since the Commission's 2012 revisions,
increased attention to environmental concerns, including climate change
and issues driven by the COVID-19 public health crisis, have likely
encouraged continued environmental claims related to various products,
packaging, services, and manufacturing processes. The Commission notes
the proliferation of environmental benefit claims includes claims not
currently addressed in the Guides. Accordingly, this review is
important to ensure the Guides reflect changes in the marketplace over
time.
The Commission also seeks to ensure the Guides appropriately
respond to changes in consumer perception. As the Commission recognized
in 1992, science and technology in the environmental area change
constantly, and new developments might affect consumer perception.
Thus, in section III.B., the Commission solicits specific consumer
survey evidence and consumer perception data addressing environmental
claims, including claims not currently covered by the Guides.
III. Issues for Comment
The Commission requests written comment on the following questions,
including whether the Commission should initiate a proceeding to
consider a rulemaking relating to environmental benefit claims under
its FTC Act authority.\3\ Responses should be as specific as possible,
and reference the question being answered, as well as empirical data or
other evidence wherever available and appropriate. Additionally, the
Commission also invites comments on any issues related to the Green
Guides not specifically mentioned in the questions below.
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\3\ Under section 18 of the FTC Act, 15 U.S.C. 57a, the
Commission is authorized to prescribe ``rules which define with
specificity acts or practices which are unfair or deceptive acts or
practices in or affecting commerce'' within the meaning of section
5(a)(1) of the Act. Among other things, the statute requires that
Commission rulemaking proceedings provide an opportunity for
informal hearings at which interested parties are accorded limited
rights of cross-examination. Before commencing a rulemaking
proceeding, the Commission must have reason to believe that the
practices to be addressed by the rulemaking are ``prevalent.'' 15
U.S.C. 57a(b)(3). Once the Commission has promulgated a trade
regulation rule, anyone who violates the rule ``with actual
knowledge or knowledge fairly implied on the basis of objective
circumstances that such act is unfair or deceptive and is prohibited
by such rule'' is liable for civil penalties for each violation. The
Commission obtains such penalties by referring a suit to the
Department of Justice for filing in federal district court under
section 5(m)(1)(A) of the FTC Act, 15 U.S.C. 45(m)(1)(A).
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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, particularly on small businesses?
c. How would these modifications affect 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 and/
or consumer and environmental organizations? What evidence supports the
asserted costs?
6. What modifications, if any, should the Commission make 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 of the Guides?
7. Please provide any evidence that has become available since 2012
concerning consumer perception of environmental claims, including
claims not currently covered by the Guides. Does this new information
indicate the Guides should be modified? If so, why, and how? If not,
why not?
8. Please provide any evidence that has become available since 2012
concerning consumer interest in particular environmental issues. Does
this new information indicate 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,
particularly 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, particularly to small
businesses?
a. What evidence supports your proposed modifications?
b. How would these modifications affect the costs the Guides impose
on businesses, particularly small businesses?
c. How would these modifications affect the consumer benefits?
11. What significant costs, including costs of compliance, have the
Guides imposed on businesses, particularly on small businesses? What
evidence supports the asserted costs?
12. What modifications, if any, should be made to the Guides to
reduce the
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costs imposed on businesses, particularly on small businesses?
a. What evidence supports your proposed modifications?
b. How would these modifications affect the consumer 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 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 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 the Commission should
consider as it reviews the Guides? If so, what are they? Should the
Guides be modified to harmonize with these international laws,
regulations, or standards? If so, why, and how? If not, why not?
19. Should the Commission initiate a proceeding to consider a
rulemaking under the FTC Act related to deceptive or unfair
environmental claims?
a. If so, which principles set out in the Green Guides should be
incorporated into a rule? For each suggested provision, explain why and
provide any evidence that supports your proposal.
b. Are there additional principles related to environmental claims
not currently covered by the Guides that should be incorporated into a
rule? For each suggested provision, explain why and provide any
evidence that supports your proposal.
B. Specific Claims
The Commission seeks comments on specific issues that have
generated increased attention and interest over the last several years.
The following questions are designed to facilitate comment on those
issues, and the inclusion or exclusion of any topic does not indicate
that specific modifications to the Guides are currently under
consideration.
1. Carbon Offsets and Climate Change, 16 CFR 260.5. The Guides
currently include guidance relating to carbon offsets. Should the
Commission consider revising this section or provide additional
guidance addressing other types of advertising claims related to carbon
offsets and/or climate change?
a. Are there any specific claims related to carbon offsets not
currently addressed by the Green Guides that are appropriate for
further consideration during the review?
b. What, if any, evidence is there of deceptive claims related to
climate change in the market?
c. If such evidence exists, what specific guidance should the FTC
provide to help marketers avoid deceptive claims?
d. Is there any consumer research available regarding consumer
perception of climate change-related claims such as ``net zero,''
``carbon neutral,'' ``low carbon,'' or ``carbon negative''?
e. Are there any specific deceptive claims related to climate
change prevalent in the market?
f. If evidence of deception exists, what specific guidance should
the FTC provide to help marketers avoid deceptive claims? What evidence
supports your proposed revision?
2. Compostable, 16 CFR 260.7. The Guides currently advise marketers
claiming products are ``compostable'' in municipal or institutional
facilities that they should qualify such claims if appropriate
facilities are not available to a substantial majority of consumers or
communities where the item is sold. Should this guidance be revised to
define ``substantial majority'' consistent with the ``recyclable''
section? If so, why, and what guidance should be provided? If not, why
not? What evidence supports your proposed revision(s)?
3. Degradable, 16 CFR 260.8. The Guides provide that an unqualified
claim indicating a product or package is degradable, biodegradable,
oxo-degradable, oxo-biodegradable, or photodegradable should be
substantiated by competent and reliable scientific evidence
demonstrating the entire item will completely break down and return to
nature within a reasonably short period of time after customary
disposal. For products customarily disposed in a landfill, ``reasonably
short period of time'' is defined as one year.
a. Should the Commission revise the Guides to provide an
alternative timeframe for product decomposition for all or any category
of products? Does the timeframe differ for liquid products?
b. If so, why, and what should the timeframe be? If not, why not?
What evidence supports your proposed revision(s)?
c. Should the Commission clarify or change existing guidance on
degradable claims in light of its decision in the ECM Biofilms matter?
\4\ If so, how?
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\4\ In the Matter of ECM BioFilms, Inc., a corporation, also d/
b/a Enviroplastics International, 160 F.T.C. 652 (2015).
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4. Ozone-Safe/Ozone-Friendly, 16 CFR 260.11. The Guides contain an
example stating it is deceptive to label a product ``ozone-friendly''
if the product contains any ozone-depleting substance, including those
substances listed as Class I or Class II chemicals in Title VI of the
Clean Air Act Amendments of 1990, Public Law 101-549, and others
subsequently designated by EPA as ozone-depleting substances. The
Guides list chlorofluorocarbons (``CFCs''); halons; carbon
tetrachloride; 1,1,1-trichloroethane; methyl bromide;
hydrobromofluorocarbons; and hydrochlorofluorocarbons (``HCFCs'') as
examples of such ozone-depleting substances. Should the Commission
remove or revise this example given that it references ozone-depleting
chemicals that the EPA now bans? If so, why, and what guidance should
be provided? If not, why not? What evidence supports your proposed
revision(s)?
5. Recyclable, 16 CFR 260.12. Should the Commission revise the
Guides to include updated guidance on ``recyclable'' claims? If so,
why, and what guidance should be provided? If not, why not?
a. What evidence supports your proposed revision(s)?
b. What evidence is available concerning consumer understanding of
the term ``recyclable''?
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c. What evidence constitutes a reasonable basis to support a
``recyclable'' claim?
6. Recyclable, 16 CFR 260.12. The Guides provide that marketers can
make an unqualified ``recyclable'' claim when recycling facilities are
available to a substantial majority of consumers or communities where
the item is sold. ``Substantial majority'' is defined as 60%.
a. Should the Guides be revised to update the 60% threshold? If so,
why, and what guidance should be provided? If not, why not? What
evidence supports your proposed revision? Is there any recent consumer
perception research relevant to the 60% threshold?
b. Should the Guides be revised to include guidance related to
unqualified ``recyclable'' claims for items collected by recycling
programs for a substantial majority of consumers or communities but not
ultimately recycled due to market demand, budgetary constraints, or
other factors? If so, why, and what guidance should be provided? If
not, why not? What evidence supports your proposed revision?
7. Recycled Content, 16 CFR 260.13. The Guides state marketers may
make ``recycled content'' claims only for materials 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? If so,
why? If not, why not, and what guidance should be provided? What
evidence supports your proposed revision(s)?
8. Recycled Content, 16 CFR 260.13. The Guides suggest marketers
can substantiate ``recycled content'' claims using per-product or
annual weighted average calculation methods. Should the Guides be
revised to provide guidance on making ``recycled content'' claims based
on alternative method(s), e.g., mass balance calculations, certificate
(i.e., credit or tagging) systems, or other methods? If so, why, and
what guidance should be provided? If not, why not? What evidence
supports your proposed revision?
9. Recycled Content, 16 CFR 260.13. What changes, if any, should
the Commission make to its guidance on pre-consumer or post-industrial
recycled content claims? How do consumers interpret such claims? Please
provide any relevant consumer perception evidence.
10. Energy Use/Energy Efficiency. Should the Commission consider
adding guidance on energy use or efficiency claims for home-related
products, electric vehicles, or other products?
a. What, if any, evidence exists of such deceptive claims in the
market?
b. What types of products are typically involved with deceptive
claims?
c. If deception exists, what specific guidance should the
Commission provide to help marketers avoid deceptive claims? What
evidence supports your proposed revision?
11. Organic. In 2012, the Commission declined to issue guidance on
``organic'' claims for non-agricultural products. Should the Commission
revisit this determination? 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 ``organic'' with respect to non-agricultural products?
c. What evidence constitutes a reasonable basis to support an
``organic'' claim in this context?
12. Sustainable. In 2012, the Commission determined it lacked a
basis to give specific guidance on how consumers interpret
``sustainable'' claims. Should the Commission revisit this
determination? 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?
IV. Instructions for Submitting Comments
You can file a comment online or on paper. For the FTC to consider
your comment, we must receive it on or before February 21, 2023. Write
``Green Guides Review, Matter No. P954501'' on your comment.
Because of public health measures and the agency's heightened
security screening, postal mail addressed to the Commission will be
subject to delay. As a result, we strongly encourage you to submit your
comments online through www.regulations.gov. To ensure the Commission
considers your online comment, please follow the instructions on the
web-based form. Your comment_including your name and your state_will
be placed on the public record of this proceeding, including the
www.regulations.gov website. As a matter of discretion, the Commission
tries to remove individuals' home contact information from comments
before placing them on the regulations.gov site.
If you file your comment on paper, write ``Green Guides Review,
Matter No. P954501'' on your comment and on the envelope, and mail it
to the following address: Federal Trade Commission, Office of the
Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex J),
Washington, DC 20580.
Because your comment will be placed on the publicly accessible
website at www.regulations.gov, you are solely responsible for making
sure that your comment does not include any sensitive or confidential
information. In particular, your comment should not include any
sensitive personal information, such as your or anyone else's Social
Security number; date of birth; driver's license number or other state
identification number, or foreign country equivalent; passport number;
financial account number; or credit or debit card number. You are also
solely responsible for making sure that your comment does not include
any sensitive health information, such as medical records or other
individually identifiable health information. In addition, your comment
should not include any ``trade secret or any commercial or financial
information which . . . is privileged or confidential''--as provided by
section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule Sec.
4.10(a)(2), 16 CFR 4.10(a)(2)--including, in particular, competitively
sensitive information such as costs, sales statistics, inventories,
formulas, patterns, devices, manufacturing processes, or customer
names.
Comments containing material for which confidential treatment is
requested must be filed in paper form, clearly labeled
``Confidential,'' and comply with FTC Rule Sec. 4.9(c), 16 CFR 4.9(c).
In particular, the written request for confidential treatment that
accompanies the comment must include the factual and legal basis for
the request, and identify the specific portions of the comment to be
withheld from the public record. See FTC Rule Sec. 4.9(c). Your
comment will be kept confidential only if the General Counsel grants
your request in accordance with the law and public interest. Once your
comment has been posted publicly at www.regulations.gov, we cannot
redact or remove your comment unless you submit a confidentiality
request that meets the requirements for such treatment under FTC Rule
Sec. 4.9(c), and the General Counsel grants that request.
The FTC Act and other laws that the Commission administers permit
the collection of public comments to
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consider and use in this proceeding, as appropriate. The Commission
will consider all timely and responsive public comments that it
receives on or before February 21, 2023. For information on the
Commission's privacy policy, including routine uses permitted by the
Privacy Act, see https://www.ftc.gov/site-information/privacy-policy.
By direction of the Commission.
April J. Tabor,
Secretary.
Note: the following statement will not appear in the Code of
Federal Regulations.
Statement of Chair Lina M. Khan
People decide what to buy, or not to buy, for all kinds of reasons.
One of those reasons increasingly seems to be environmental impact.
Before making a purchase, many American consumers want to know how a
product contributes to climate change, or pollution, or the spread of
microplastics. Businesses have noticed. Walk down the aisle at any
major store--you're likely to see packages trumpeting their low carbon
footprint, their energy efficiency, or their quote-unquote
``sustainability.''
For the average consumer, it's impossible to verify these claims.
People who want to buy green products generally have to trust what it
says on the box.
That's why it's so important for companies making these claims to
tell the truth. If they don't, it distorts the market for
environmentally friendly products. It puts honest companies, who bear
the costs of green business practices, at a competitive disadvantage.
And it harms consumers who want to make conscientious decisions about
what products to buy and what businesses to support.
The Commission has a strong track record of suing companies for
deceptive environmental claims. It has reached several multi-million-
dollar settlements just in the past few years.\1\ And, since 1992, the
FTC has published the Guides for the Use of Environmental Marketing
Claims.\2\ The ``Green Guides,'' as we call them, are administrative
interpretations of the FTC Act as applied to environmental claims. They
help companies avoid running afoul of the law's ban on deceptive
advertising. And they clarify the boundaries for fair, legal
competition.
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\1\ United States v. Walmart Inc., Case No. 1:22-cv-00965
(D.D.C. Apr. 8, 2022), https://www.ftc.gov/system/files/ftc_gov/pdf/2023173WalmartComplaint.pdf; United States v. Kohl's Inc., Case No.
1:22-cv-00964 (D.D.C. Apr. 8, 2022), https://www.ftc.gov/system/files/ftc_gov/pdf/2023171KohlsOrder.pdf; FTC v. Truly Organic Inc.,
Case No. 1:19-cv-23832 (S.D. Fla. Sept. 18, 2019), https://www.ftc.gov/system/files?file=documents/cases/truly_organic_stipulated_final_order_0.pdf.
\2\ The most recent revisions to the Guides occurred in 2012.
See Guides for the Use of Environmental Marketing Claims, 77 FR
62122 (Oct. 11, 2012).
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To be effective, the Green Guides have to keep up with developments
in both science and consumer perception. That's why the Commission is
commencing a regulatory review of the guides.
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.
I'd like to thank staff for their hard work on this matter, and I
encourage members of the public to submit comments to make sure their
voice is heard.
[FR Doc. 2022-27558 Filed 12-19-22; 8:45 am]
BILLING CODE 6750-01-P