63552 Federal Register / Vol. 75, No. 199 / Friday, October 15, 2010 / Proposed Rules 

FEDERAL TRADE COMMISSION 

16 CFR Part 260 

Guides for the Use of Environmental 

Marketing Claims 

AGENCY: Federal Trade Commission. 

ACTION: Proposed revisions to 

guidelines. 

SUMMARY: The Federal Trade 

Commission (‘‘FTC’’ or ‘‘Commission’’) 

conducted a comprehensive review of 

its Guides for the Use of Environmental 

Marketing Claims (‘‘Green Guides’’ or 

‘‘Guides’’) and proposes retaining the 

Guides. After reviewing the public 

comments, the transcripts of three 

public workshops that explored 

emerging issues, and the results of its 

consumer perception research, the 

Commission proposes several 

modifications and additions to the 

Guides. These proposed revisions aim to 

respond to changes in the marketplace 

and help marketers avoid making unfair 

or deceptive environmental marketing 

claims. The Commission seeks comment 

on these proposed revisions and other 

issues raised in this document. 

DATES: Comments must be received on 

or before December 10, 2010. 

ADDRESSES: Interested parties are 

invited to submit written comments 

electronically or in paper form, by 

following the instructions in the 

Request for Comment part of the 

SUPPLEMENTARY INFORMATION 

section below. Comments in electronic 

form should be submitted at (https:// 

ftcpublic.commentworks.com/ftc/ 

revisedgreenguides) (and following the 

instructions on the web-based form). 

Comments in paper form should be 

mailed or delivered to the following 

address: Federal Trade Commission, 

Office of the Secretary, Room H-135 

(Annex J), 600 Pennsylvania Avenue, 

NW, Washington, DC 20580, in the 

manner detailed in the Request for 

Comment part of the 

SUPPLEMENTARY INFORMATION 

section below. 

FOR FURTHER INFORMATION CONTACT: 

Laura Koss, Attorney, Division of 

Enforcement, Bureau of Consumer 

Protection, Federal Trade Commission, 

202-326-2890. 

SUPPLEMENTARY INFORMATION: 

I. Overview 

Environmental marketing claims are 

useful sources of information for 

consumers, but only when they are true. 

Ensuring that such claims are truthful is 

particularly important because 

consumers often cannot determine for 

themselves whether a product, package, 

or service actually possesses the 

advertised environmental attribute. 

Because there is a potential for 

consumer confusion about 

environmental claims, guidance from 

the FTC can benefit both businesses and 

consumers alike. 

To help marketers make truthful and 

substantiated environmental claims, the 

Federal Trade Commission issued the 

Guides for the Use of Environmental 

Marketing Claims (‘‘Green Guides’’ or 

‘‘Guides’’) in 1992, and revised them in 

1996 and 1998. The Guides help 

marketers avoid making deceptive 

claims by outlining general principles 

that apply to all environmental 

marketing claims and providing specific 

guidance about how reasonable 

consumers are likely to interpret 

particular claims, how marketers can 

substantiate them, and how they can 

qualify those claims to avoid consumer 

deception. 

Periodic review ensures that the 

Guides keep pace with evolving 

consumer perceptions and new 

environmental claims. Since the FTC 

last revised them in 1998, the 

marketplace has been dynamic. As 

consumers have become increasingly 

concerned about the environmental 

impact of the products and services they 

use, marketers have expanded their 

promotion of the environmental 

attributes of their products and services. 

Some of these promotions have 

prompted enforcement action by the 

FTC, including cases challenging certain 

environmental benefit claims as false, 

such as ‘‘degradable’’ paper products or 

so-called ‘‘bamboo’’ textiles that are 

made with an ‘‘eco-friendly 

manufacturing process.’’ And, an 

increasing number of environmental 

claims are new or were not common 

when the Guides were last reviewed 

and, therefore, are not addressed by the 

current Guides. Thus, beginning in 

2007, the FTC sought public comments 

on the continuing effectiveness of the 

Guides, held public workshops on 

emerging green marketing issues, and 

conducted research on consumer 

perception of environmental claims. 

This review affirms that the Guides have 

benefitted consumers and businesses 

but suggests that the Guides should be 

updated. 

The FTC, therefore, proposes several 

revisions to the Guides. Many of these 

revisions strengthen, add specificity to, 

or enhance the accessibility of the 

current guidance on general ‘‘green’’ 

claims and environmental seals, and 

claims such as compostable, degradable, 

and recyclable. Others propose new 

guidance regarding emerging claims not 

currently addressed in the Guides, such 

as renewable materials, renewable 

energy, and carbon-offsets. The FTC also 

proposes non-substantive changes 

throughout the Guides to make them 

easier to read and use, including 

simplifying language and reorganizing 

sections to make information easier to 

find. The FTC is now seeking further 

public comment on each of these 

proposed modifications to the Guides. 

First, the FTC proposes strengthening 

its guidance regarding general 

environmental benefit claims. The 

FTC’s consumer perception study 

confirms what the current Guides 

already state — unqualified claims that 

an item is ‘‘environmentally friendly’’ or 

‘‘eco-friendly’’ are likely to convey that 

it has specific and far-reaching 

environmental benefits. Very few 

products, if any, have all of the 

attributes consumers seem to perceive 

from such claims. Therefore, these 

claims may be impossible to 

substantiate. Accordingly, the proposed 

guidance cautions marketers not to 

make unqualified general claims. Our 

study indicates, however, that marketers 

may be able to effectively qualify these 

claims to focus consumers on the 

specific environmental benefits that 

marketers could substantiate. Therefore, 

the proposed revised Guides provide 

more prominent guidance on how to 

adequately qualify general 

environmental claims. 

Similarly, the proposed revised 

Guides include a new section devoted to 

certifications and seals of approval, 

which currently are addressed in a 

single example. The proposed new 

section gives more prominence to the 

current Guides’ admonition that 

unqualified seals of approval and 

certifications likely constitute general 

environmental benefit claims. It also 

more directly cautions marketers not to 

use unqualified certifications or seals, 

i.e., certifications or seals that do not 

state the basis for the certification. The 

proposed section further advises 

marketers that qualifications should be 

clear and prominent and should convey 

that the certification or seal of approval 

refers only to specific and limited 

benefits. Moreover, this new section 

emphasizes that certifications and seals 

of approval constitute endorsements 

covered by the FTC’s Endorsement 

Guides and includes examples 

explaining how those Guides apply to 

environmental claims. 

The proposed revised Guides also 

suggest clarification for claims that a 

product is degradable, compostable, or 

‘‘free of’’ a particular substance, and 

highlight guidance for recyclable claims. 

If a marketer claims, in certain cases, 

that a product is ‘‘degradable,’’ it should 

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Federal Register / Vol. 75, No. 199 / Friday, October 15, 2010 / Proposed Rules 63553 

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)) and 1998 (63 FR 24240 (May 1, 

1998)). 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), Appliance 

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, however, do not establish 

standards for environmental performance or 

prescribe testing protocols. 

3 16 CFR 260.5. 

4 Id. 

5 See, e.g., Indoor Tanning Ass’n, Docket No. C4290 (May 13, 2010) (consent order); see also 

Dietary Supplements: An Advertising Guide for 

Industry FTC, Dietary Supplements: An Advertising 

Guide for Industry (2001), available at (http:// 

www.ftc.gov/bcp/edu/pubs/business/adv/ 

bus09.pdf) (stating that ‘‘the studies relied on by an 

advertiser would be largely consistent with the 

surrounding body of evidence’’). 

6 Citations to comments identify the commenter, 

the particular Federal Register Notice to which the 

commenter responded (533431– Green Guides 

Review; 533254 – Carbon Offsets and Renewable 

Energy Certificates Workshop; 534743 – Green 

Packaging Workshop; or 536013 – Green Building 

and Textiles Workshop), and the assigned comment 

number. 

7 See, e.g., American Chemistry Council (‘‘ACC’’), 

Comment 533431-00023 at 3 (citing a 2005 

nationwide survey finding that 90 percent of 

consumers base their buying decisions, in part, on 

the effect their choices will have on the 

environment); Environmental Packaging 

International (‘‘EPI’’), Comment 533431-00063 at 8 

(citing studies by the Natural Marketing Institute, 

Landor Associates, Datamonitor, Organic 

Consumers Association, and Global Marketing 

Insite); Saint-Gobain Corporation (‘‘Saint-Gobain’’), 

Comment 533431-00037 at 5-6 (citing studies by 

Consumers International, American Environics, 

EcoPinion); Seventh Generation, Comment 533431- 

00033 at 2 (citing 2007 Cone Consumer 

Environmental Survey); American Beverage 

Association (‘‘ABA’’), Comment 533431-00066 at 2- 

3; Dow Chemical Company (‘‘Dow’’), Comment 

533431-00010 at 1; North American Insulation 

Manufacturers Association (‘‘NAIMA’’), Comment 

536013-00017 at 5-6; Procter & Gamble Company 

(‘‘P&G’’), Comment 533431-00070 at 1; The 

Advertising Trade Associations (‘‘ATA’’), Comment 

533431-00041 at 7. 

decompose in a ‘‘reasonably short period 

of time’’ — no more than one year. 

Moreover, if a solid product is destined 

for a landfill, an incinerator, or a 

recycling facility, the marketer should 

not make unqualified degradable claims 

because the product will not degrade 

within a year. Similarly, when making 

an unqualified ‘‘compostable’’ claim, a 

marketer should be able to show that the 

product will break down into usable 

compost in a safe and timely manner — 

approximately the same time as the 

materials with which it is composted. 

The proposed Guides also clarify and 

expand guidance about claims that 

products are ‘‘free of’’ particular 

materials. Finally, the proposed Guides 

highlight advice in the current guides 

that the use of ‘‘recyclable’’ depends on 

how many consumers and communities 

have access to recycling facilities for the 

advertised product. 

The proposed revised Guides also 

include new sections for claims not 

addressed by the current Guides, such 

as claims about the use of ‘‘renewable 

materials’’ and ‘‘renewable energy’’ The 

FTC’s consumer perception research 

suggests that these claims may be 

misleading because consumers interpret 

them differently than marketers intend. 

The proposed new sections advise 

marketers to provide context for these 

claims, in the form of specific 

information about the materials and 

energy used. Because the FTC’s study 

did not test the effect of qualifying these 

claims, however, the FTC specifically 

seeks comment on whether providing 

this, or other information, would reduce 

consumer confusion. The proposed 

revised Guides also provide advice 

about ‘‘carbon offset’’ claims: marketers 

should disclose if the offset purchase 

funds emission reductions that will not 

occur within 2 years, should make sure 

that they do not double count offsets, 

and should not advertise an offset if the 

activity that produces the offset is 

already required by law. 

Environmental marketing presents 

complex, challenging issues. Despite the 

voluminous record established by this 

review, the FTC would benefit from 

additional input in many areas, 

including for the claims discussed 

above and also for ‘‘organic’’ and ‘‘made 

with recycled content’’ claims. 

Therefore, the FTC invites comment on 

all aspects of the proposed revised 

Guides, as well as on the specific 

questions it poses in this Notice. The 

FTC will take all suggestions into 

account as it works to finalize the 

revised Guides. 

II. Background 

A. The Green Guides 

The Commission issued the Green 

Guides, 16 CFR Part 260, to help 

marketers avoid making environmental 

claims that are unfair or deceptive 

under Section 5 of the Federal Trade 

Commission Act (FTC Act), 15 U.S.C. 

45.1 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, however, can take action 

under the FTC Act if a marketer makes 

an environmental claim inconsistent 

with the Guides. In any such 

enforcement action, the Commission 

must prove that the challenged act or 

practice is unfair or deceptive. 

The Green Guides outline general 

principles that apply to all 

environmental marketing claims and 

provide specific guidance regarding 

many environmental benefit claims. For 

each such claim, the Green Guides 

explain how reasonable consumers are 

likely to interpret the claim, describe 

the basic elements necessary to 

substantiate the claim, and present 

options for qualifying the claim to avoid 

deception.2 The illustrative 

qualifications provide guidance for 

marketers who want assurance about 

how to make nondeceptive 

environmental claims, but do not 

represent the only permissible 

approaches to qualifying a claim. This 

guidance assists marketers in making 

truthful and substantiated statements 

about the environmental attributes of 

their products and services. 

In order to adequately substantiate 

environmental marketing claims, the 

Guides advise marketers that they will 

often need ‘‘competent and reliable 

scientific evidence.’’3 The Guides 

currently define competent and reliable 

scientific evidence as ‘‘tests, analyses, 

research, studies or other evidence 

based on the expertise of professionals 

in the relevant area, conducted and 

evaluated in an objective manner by 

persons qualified to do so, using 

procedures generally accepted in the 

profession to yield accurate and reliable 

results.4 Since the last Green Guides 

review, the Commission has clarified 

this standard, stating that such evidence 

‘‘should be sufficient in quality and 

quantity based on standards generally 

accepted in the relevant scientific fields, 

when considered in light of the entire 

body of relevant and reliable scientific 

evidence, to substantiate that [a] 

representation is true.’’5

B. The Green Guides Review 

1. First Request for Public Comment6

Since the Commission last revised the 

Green Guides in 1998, both anecdotal 

evidence and empirical research 

indicate that consumers have a 

heightened awareness of environmental 

concerns and, therefore, place increased 

importance on buying products and 

services that will cause less harm to the 

environment.7 Marketers, in turn, have 

responded by touting the environmental 

attributes of their products and services. 

Because of the proliferation of these 

environmental claims, the Commission 

began its decennial Guides review on 

November 26, 2007, one year before 

scheduled. The Commission’s 

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63554 Federal Register / Vol. 75, No. 199 / Friday, October 15, 2010 / Proposed Rules 

8 72 FR 66091 (Nov. 27, 2007). This review has 

taken some time because, in order to provide as 

useful advice as possible, the Commission 

conducted a consumer perception study of certain 

environmental marketing claims. The Commission 

discusses this study in detail below. 

9 See 72 FR 66094 (Nov. 27, 2007). 

10 See 73 FR 11371 (Mar. 3, 2008). 

11 See 73 FR 32662 (June 10, 2008). 

12 Citations to workshop transcripts or 

presentations identify the speaker’s name and 

organization, the relevant workshop, and either the 

transcript page or the hyperlink to the speaker’s 

presentation. 

13 Documents relating to the Green Guides 

review, including the public comments; workshop 

agendas, presentations, and transcripts; and the 

Commission’s consumer perception study are 

available at (http://www.ftc.gov/green). 

14 The Union of Concerned Scientists submitted 

a comment containing letters from over 16,000 

individuals. Although approximately 1,300 of those 

letters vary in form, the substance of all the letters 

is the same. They urged the FTC to review the 

environmental marketing of corn-based ethanol as 

a ‘‘green’’ alternative to gasoline. The comments 

suggested that such marketing is not based on 

‘‘sound science’’ because corn ethanol production 

could cause an increase in the production of global 

warming pollution over regular gasoline. 

15 The Commission discusses the consumer 

perception research that commenters submitted in 

the substantive parts of this Notice. 

16 ACC, Comment 536013-00030 at 2 (citing a 

survey of consumer descriptions of a ‘‘green 

company’’); Rick L. Cantrell, Sustainable Forestry 

Initiative, Inc. (‘‘SFI’’), Green Building and Textiles 

Workshop Presentation at (http://www.ftc.gov/bcp/ 

workshops/buildingandtextiles/presentations/ 

3rcantrell.pdf) (citing a survey regarding consumer 

concerns about ‘‘sustainable forestry’’); P&G, 

Comment 533431-00070 at 1 (citing a study of 

consumer consideration of ‘‘sustainability factors’’ 

in purchasing decisions); Kelly Tullier, Grocery 

Manufacturers Association (‘‘GMA’’), Green 

Packaging Workshop Presentation at (http:// 

www.ftc.gov/bcp/workshops/packaging/ 

presentations/tullier.pdf) (same); U.S. Green 

Building Council (‘‘USGBC’’), Comment 536013- 

00029 at 2 (citing a study regarding consumer 

knowledge of green homebuilding). 

17 John Kalkowski, Packaging Digest (‘‘Packaging 

Digest’’), Green Packaging Workshop Tr. at 22-23 

(citing a study concerning consumers’ lack of 

interest in environmental activities); Patricia F. 

O’Leary, Cotton Incorporated (‘‘Cotton 

Incorporated’’), Green Building and Textiles 

Workshop Tr. at 28 (citing a study regarding 

consumers’ reaction to apparel items that are not 

‘‘environmentally friendly’’); NAIMA, Comment 

536013-00027 at 4-5 (citing a study regarding 

consumers’ concern about global warming); SaintGobain, Comment 533431-00037 at 4-5 (same); 

Seventh Generation, Comment 533431-00033 at 2 

(citing studies of consumers’ interest in the 

environment). 

18 GMA, Green Packaging Workshop Tr. at 111 

(citing a survey concerning consumer Internet use 

to get information about environmental initiatives 

and products); National Recycling Coalition 

(‘‘NRC’’), Comment 533431-00078 at 2 (discussing 

its research concerning consumers’ recycling 

behavior); Sam Rashkin, Environmental Protection 

Agency, Green Building and Textiles Workshop Tr. 

at 178-179 (citing a survey concerning consumer 

awareness of the Energy Star name and logo); 

Kirsten Ritchie, Gensler (‘‘Gensler’’), Green Building 

and Textiles Workshop Tr. at 109 (same); Timothy 

Smith, University of Minnesota (‘‘Univ. of 

Minnesota’’), Comment 536013-00004 at 1 (citing a 

study examining life cycle information in 

advertising). 

19 The Commission’s consumer perception study 

is available at (http://www.ftc.gov/green). 

20 The sample for this research, therefore, does 

not necessarily constitute a true, random sample of 

the adult U.S. population. However, because the 

study focused primarily on comparing responses 

across randomly assigned treatment groups, the 

Internet panel provided an appropriate sample 

frame. 

21 Additional detail on sample selection is 

available in the methodology report prepared by 

Harris which is available at (http://www.ftc.gov/ 

green). 

22 The study results support the current Guides’ 

approach of providing general, rather than productspecific, guidance because consumers generally 

viewed the tested claims similarly for the three 

tested products. Moreover, the results were 

comparable for respondents who indicated concern 

and interest in environmental issues and those who 

did not. 

November 2007 Federal Register Notice 

sought comment on a number of general 

issues, including the continuing need 

for and economic impact of the Guides, 

the effect of the Guides on the accuracy 

of environmental claims, and whether 

the Commission should provide 

guidance on certain environmental 

claims – such as carbon neutral, 

sustainable, and renewable – not 

currently addressed in the Guides.8 The 

Commission received 75 written 

comments in response. 

2. Workshops and Corresponding 

Requests for Public Comment 

To establish a more robust record, the 

Commission also held three public 

workshops to explore emerging 

environmental marketing claims. 

Specifically, the workshops addressed 

carbon offsets and renewable energy 

certificates;9 green packaging claims;10

and green building and textiles.11 The 

workshops brought together over 450 

people representing industry, 

government, consumer groups, the 

academic community, and non-profit 

environmental organizations.12 The 

Commission requested comment in 

connection with each workshop13 and 

received an additional 125 written 

comments.14

3. Consumer Perception Evidence 

Because the Guides are based on 

consumer understanding of 

environmental claims, consumer 

perception research can provide the 

Commission with the best evidence 

upon which to formulate guidance. The 

following discusses commenters’ 

submissions of consumer research and 

the Commission’s 2009 consumer 

perception study. 

a. Commenters’ Submissions 

Although the Notices solicited 

consumer perception evidence, few 

commenters submitted such research.15

Rather, commenters submitted research 

concerning: (1) consumers’ attitudes and 

beliefs about environmental claims;16

(2) consumers’ environmental concerns 

and interests;17 and (3) consumers’ 

behavior regarding environmental 

claims.18 These surveys do not provide 

a basis upon which the Commission can 

formulate guidance on how to make 

truthful and nondeceptive 

environmental marketing claims. 

Accordingly, the Commission 

conducted its own consumer perception 

study in July and August of 2009. 

b. The Commission’s Consumer 

Perception Study 

To conduct the study, the FTC 

contracted with Harris Interactive, a 

consumer research firm with substantial 

experience surveying consumer 

communications.19 The study sampled 

members of the contractor’s Internet 

panel, which consists of more than four 

million individuals recruited through a 

variety of convenience sampling 

procedures.20 From this sample, Harris 

selected individuals who were invited 

to complete the survey. Participants 

were selected to correspond, as much as 

possible, with the known distribution of 

U.S. adults aged 18 and over in terms of 

age, gender, race and ethnicity, and 

geographic region. A total of 3,777 

individuals completed the survey.21

Harris presented participants with 

several questions aimed at determining 

how they understand certain 

environmental claims. The first portion 

of the study tested the following claims: 

‘‘green,’’ ‘‘eco-friendly,’’ ‘‘sustainable,’’ 

‘‘made with renewable materials,’’ ‘‘made 

with renewable energy,’’ and ‘‘made 

with recycled materials.’’ The 

questionnaire asked about both 

unqualified and qualified general 

environmental benefit claims (e.g., 

‘‘green’’ vs. ‘‘green - made with recycled 

materials’’), as well as specific-attribute 

claims alone (e.g., ‘‘made with recycled 

materials’’). The study tested these 

claims against a non-environmental 

control claim (e.g., ‘‘new and 

improved’’). Moreover, to examine 

whether consumers’ understanding of 

the claims differed depending on the 

product being advertised, the study 

tested the claims as they appeared on 

three different products – wrapping 

paper, a laundry basket, and kitchen 

flooring.22 Harris tested 16 different 

claims with each of the three different 

products, resulting in a total of 48 

product-claim pairs. To avoid skewing 

an individual’s answers by asking the 

same person essentially the same set of 

questions multiple times, and to limit 

the length of the survey presented to 

any individual, each participant was 

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23 The methodology used for this study may not 

be appropriate for testing consumer perception of 

a particular advertising claim. Among other 

differences, marketers must test the claim in the 

context of a specific advertisement, which was 

impossible here. 

24 Among other things, the Commission proposes 

deleting from Section 260.5 a reference to the FTC’s 

law enforcement actions in the green area and the 

telephone number to call to obtain copies of those 

cases. Case information may be found on the 

Commission’s website, (http://www.ftc.gov). In 

addition, in Section 260.2, the Commission 

proposes deleting the explicit statement that the 

Guides apply to ‘‘marketing through digital or 

electronic means.’’ The Commission added this 

reference in 1998, when Internet marketing was 

emerging and online advertisers were uncertain 

about the Guides’ applicability. Because Internet 

marketing is now ubiquitous, the Commission 

proposes revising the Guides to state that they 

apply to marketing in any medium. 

25 Information about petitioning the FTC may be 

found in the Commission’s rules. See, e.g., 16 CFR 

1.6. 

26 As we did when issuing the Guides in 1992 

and revising them in 1996 and 1998, the 

Commission concludes that the proposed revisions 

to the Guides would not have a significant impact 

on the environment and any such impact ‘‘would 

be so uncertain that environmental analysis would 

be based on speculation.’’ 16 C.F.R. 1.83(a). 

27 See, e.g., ACC, Comment 533431-00023 at 3- 

4; ATA, Comment 533431-00041 at 3, 9; American 

Forest & Paper Association (‘‘AF&PA’’), Comment 

533431-00019 at 2; American Reusable Textile 

Association, Comment 534743-00038 at 4; Business 

for Social Responsibility (‘‘BSR’’), Comment 533431- 

00016 at 1; Carbonfund.org, Comment 533431- 

00056 at 2; Carpet and Rug Institute (‘‘CRI’’), 

Comment 533431-00026 at 3; Consumer Specialty 

Products Association (‘‘CSPA’’), Comment 533431- 

00049 at 1-2; Dow, Comment 533431-00010 at 3; 

EHS Strategies, Inc. (‘‘EHS’’), Comment 534743- 

00011 at 1; Fibre Box Association (‘‘FBA’’), 

Comment 533431-00015 at 1; Georgia-Pacific LLC 

(‘‘Georgia-Pacific’’), Comment 533431-00007 at 1-3; 

Graphic Arts Coalition, Comment 533431-00060 at 

1; GreenBlue, Comment 533431-00058 at 1; Rebecca 

Hammer (‘‘Hammer’’), Comment 533431-00017 at 1- 

2; Alison C. Healey, et al. (‘‘Healey’’), Comment 

533431-00048 at 1; International Paper, Comment 

533431-00055 at 1; MeadWestvaco Corporation 

(‘‘MeadWestvaco’’), Comment 533431-00013 at 2; 

NAIMA, Comment 536013-00042 at 2-3; New York 

City Department of Consumer Affairs, Comment 

533431-00018 at 2; P&G, Comment 533431-00070 at 

1; Pratt Industries, Comment 533431-00081 at 1; 

Lynn Preston (‘‘Preston’’), Comment 533431-00021 

at 2; Saint-Gobain, Comment 533431-00037 at 2-4; 

Seventh Generation, Comment 533431-00033 at 7; 

The Soap and Detergent Association (‘‘SDA’’), 

Comment 533431-00020 at 1, 5; The Society of the 

Plastics Industry, Inc. (‘‘SPI’’), Comment 533431- 

00036 at 13; U.S. Council for International 

Business, Comment 533431-00052 at 2; 

Weyerhaeuser, Comment 533431-00084 at 1. 

asked questions regarding only two 

randomly-selected product-claim pairs. 

The second portion of the study tested 

carbon offset and carbon neutral claims. 

The questionnaire asked half of the 

participants about carbon offsets and 

half about carbon neutral claims. An 

initial screening question gauged 

whether respondents understood these 

concepts by asking them to identify 

what a carbon offset was or what carbon 

neutral meant. Only those participants 

who demonstrated a general 

understanding of these terms continued 

with the remainder of the study. 

Both portions of the study used a 

combination of open- and closed-ended 

questions exploring the same topic. The 

study questionnaire described the 

claims to participants, rather than 

presenting an actual advertisement. For 

example, a participant was asked: 

‘‘Suppose you see some wrapping paper 

advertised or labeled as ‘green - made 

with recycled materials.’’’ 

After the study’s completion, Harris 

provided FTC staff with data 

summaries. The results of this study are 

discussed below in Parts IV.F, V, and VI 

of this Notice.23

C. Outline of This Notice 

After reviewing the public comments, 

the workshop proceedings, and the 

consumer perception evidence, the 

Commission proposes retaining the 

Green Guides and making several 

revisions. Part III of this Notice proposes 

three non-substantive changes to make 

the Guides easier to read and use. Part 

IV discusses comments on general 

issues, such as the continuing need for 

the Guides and general comments on 

life cycle analysis. Part V discusses 

issues relating to specific claims that 

already are addressed by the Guides. 

Part VI addresses environmental 

marketing claims not currently covered 

by the Guides. Part VII requests public 

comment on the issues raised in this 

Notice, including the proposed, revised 

Green Guides. Finally, Part VIII sets out 

the proposed, revised Guides. 

III. Proposed Non-substantive Changes 

to the Current Green Guides 

The Commission proposes three 

changes to make the Guides easier to 

read and use. First, wherever possible, 

the Commission has simplified the 

Guides’ language to make it clearer and 

easier to understand. For example, the 

FTC has replaced its formal, legal 

description of the Guides in Section 

260.1 with a more reader-friendly 

version. Similarly, the Commission has 

removed unnecessary language and 

redundant examples from all sections of 

the Guides.24

Second, the Commission proposes 

reorganizing the Guides. Specifically, 

the proposed, revised Guides combine 

the first three sections into one section, 

which discusses the Guides’ purpose, 

scope, and structure. In addition, the 

Commission proposes splitting existing 

Section 260.7 (titled ‘‘Environmental 

Marketing Claims’’) into multiple 

sections. Currently, Section 260.7 

provides advice on eight different 

environmental claims, containing the 

bulk of the Commission’s guidance. To 

make the information easier to find, the 

Commission proposes moving each 

environmental claim into its own 

section, organized alphabetically, and 

dividing the guidance within each 

section into subparts (e.g., section 

260.9(a), 260.9(b), etc.). Because of these 

organizational changes, the Commission 

has renumbered each Guide section. 

Third, the Commission proposes 

deleting Sections 260.4 and 260.8. 

Section 260.4 states that the 

Commission reviews the Green Guides 

as part of its ongoing, periodic review 

program, and explains that parties may 

petition the Commission to amend the 

Guides in light of new evidence. This 

information is common to all of the 

Commission’s guides, and it is 

unnecessary to repeat it in each one.25

Section 260.8 contains the FTC’s 

environmental assessment of the Guides 

pursuant to the National Environmental 

Policy Act. Because this information is 

contained in the Federal Register Notice 

that enacted the Guides and is not 

needed by marketers using the Guides, 

the Commission proposes deleting it 

from the Guides’ text.26 These deletions 

will streamline the Guides, making 

them a more user-friendly document. 

IV. General Issues 

The Commission sought comment on 

several general issues, including: 

(1) whether there is a continuing need 

for the Guides; (2) whether, and to what 

degree, industry is complying with the 

Guides; (3) whether the Commission 

should modify the Guides due to 

changes in technology or economic 

conditions; (4) whether there are 

international laws or standards the FTC 

should consider as part of its review; 

and (5) whether the Guides overlap or 

conflict with other federal, state, or local 

laws or regulations. This section 

discusses the commenters’ responses to 

these questions, as well as their views 

on life cycle analysis, and provides the 

Commission’s analysis of the issues. 

A. Continuing Need for the Guides 

1. Comments 

Several commenters affirmed that the 

Guides have benefitted consumers by 

stemming the tide of spurious 

environmental claims; bolstering 

consumer confidence; imposing clarity 

and consistency in environmental 

marketing claims; and increasing the 

flow of specific and accurate 

environmental information to 

consumers, enabling them to make 

informed purchasing decisions.27 No 

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63556 Federal Register / Vol. 75, No. 199 / Friday, October 15, 2010 / Proposed Rules 

28 See, e.g., International Paper, Comment 

533431-00055 at 2 (noting that the Guides level the 

playing field by standardizing terms and requiring 

factual bases for claims); AF&PA, Comment 533431- 

00083 at 2; CSPA, Comment 533431-00049 at 1-2; 

EPI, 533431-00063 at 2; MeadWestvaco, Comment 

533431-00013 at 1; NAIMA, Comment 536013- 

00017 at 2. 

29 See, e.g., GreenBlue, Comment 533431-00058 

at 3 (stating that the Guides’ assurance of accuracy 

and specificity actually reduces costs ‘‘by providing 

a more common, consistent framework for 

communicating product attributes’’); AF&PA, 

Comment 533431-00083 at 2; ATA, Comment 

533431-00041 at 7-9; Saint-Gobain, Comment 

533431-00037 at 6-7. 

30 See, e.g., MeadWestvaco, Comment 533431- 

00013 at 1 (noting that diligent companies are 

disadvantaged by those companies that ignore or do 

not understand the Guides and capitalize on 

growing interest in environmental issues); SaintGobain, Comment 533431-00037 at 3 (commenting 

that manufacturers continue to make deceptive 

claims, particularly in insulation and building 

industries); TerraChoice Environmental Marketing, 

Inc. (‘‘TerraChoice’’), Comment 533431-00040 at 1- 

4 (stating that the use of false or misleading claims 

is rampant); GreenBlue, Comment 533431-00058 at 

4-6. But see ATA, Comment 533431-00041 at 3 

(stating that no evidence suggests that consumers 

are being misled by claims); Georgia-Pacific, 

Comment 533431-00007 at 5 (commenting that 

there is a high degree of industry compliance). 

31 TerraChoice, Comment 533431-00040 at 3, 6. 

32 Id. at 1. 

33 Jim Krenn (‘‘Krenn’’), Comment 533431-00014 

at 3. 

34 Phil Bailey (‘‘Bailey’’), Comment 533431-00028 

at 3; see also Hammer, 533431-00017 at 4-5; Healey, 

Comment 533431-00048 at 2-5. 

35 GreenBlue, Comment 533431-00058 at 4; 

International Paper, Comment 533431-00055 at 3; 

MeadWestvaco, Comment 533431-00013 at 2; Eric 

Nguyen, Comment 533431-00009 at 5-6; SDA, 

Comment 533431-00020 at 5; Seventh Generation, 

Comment 533431-00033 at 7. 

36 Joseph Cattaneo, Glass Packaging Institute 

(‘‘GPI’’), Green Packaging Workshop Tr. at 249, 251 

(noting that marketers are not paying attention to 

the Guides when creating their campaigns); ACC, 

Comment 536013-00030 at 3; Cheryl Baldwin, 

Green Seal (‘‘Green Seal’’), Green Packaging 

Workshop Tr. at 192; Victor Bell, EPI (‘‘EPI’’), Green 

Packaging Workshop Tr. at 232-233; Michelle 

Harvey, Environmental Defense Fund (‘‘EDF’’), 

Green Packaging Workshop Tr. at 53; Packaging 

Digest, Green Packaging Workshop Tr. at 52. The 

Guides currently state that they apply to any 

environmental claim made ‘‘in connection with the 

sale, offering for sale or marketing of the product, 

package, or service . . . for commercial, institutional, 

or industrial use.’’ 16 CFR 260.2. 

37 Graphic Arts Coalition, Comment 533431- 

00060 at 1. 

38 EPI, Green Packaging Workshop Tr. at 232-233. 

39 See Snehal Desai, NatureWorks LLC 

(‘‘NatureWorks’’), Green Packaging Workshop Tr. at 

246-247. 

40 See, e.g., Scot Case, TerraChoice 

(‘‘TerraChoice’’), Green Packaging Workshop Tr. at 

244. 

41 EPI, Green Packaging Workshop Tr. at 252. 

42 Dyna-E Int’l, Inc., et al., Docket No. 9336 (Dec. 

15, 2009); Kmart Corp., Docket No. C-4263 (July 15, 

2009); Tender Corp., Docket No. C-4261 (July 13, 

2009). According to the FTC’s complaints, the 

defendants’ products typically are disposed in 

landfills, incinerators, or recycling facilities, where 

it is impossible for waste to biodegrade within a 

reasonably short time period. 

43 CSE, Inc., et al., Docket No. C-4276 (Dec. 15, 

2009); Pure Bamboo, LLC, et al., Docket No. C-4274 

(Dec. 15, 2009); Sami Designs, LLC, et al., Docket 

No. C-4275 (Dec. 15, 2009); The M Group, Inc., et 

al., Docket No. 9340 (Apr. 2, 2010). According to 

the complaints, these products are made of rayon, 

manufactured through a process that uses toxic 

chemicals and releases hazardous air pollutants, 

and cannot biodegrade within a reasonably short 

time period. The Commission also brought five 

enforcement actions related to deceptive energy 

claims, involving exaggerated claims about home 

insulation and false claims about fuel-saving 

devices for motor vehicles. See United States v. 

Enviromate, LLC., et al., No. 09-CV-00386 (N.D. Ala. 

Mar. 2, 2009); United States v. Meyer Enterprises, 

LLC, et al., No. 09-CV-1074 (C.D. Ill. Mar. 2, 2009); 

United States v. Edward Sumpolec, No. 6:09-CV379-ORL-35 (M.D. Fla. Feb. 26, 2009); FTC v. 

Dutchman Enterprises, LLC, et al., No. 09-141-FSH 

(D.N.J. Jan. 12, 2009); FTC v. Five Star Auto Club, 

Inc., et al., No. 99-CIV-1963 (S.D.N.Y. Dec. 15, 

2008). 

commenters suggested the Guides were 

no longer needed. 

Several commenters stated that the 

Guides help those seeking to make 

truthful and accurate environmental 

marketing claims, while providing a 

level playing field that benefits both 

consumers and compliant companies.28

Moreover, many agreed that the Guides 

accomplish their goals without 

imposing an undue burden on 

industry.29

2. Analysis 

Based on the consensus that the 

Guides benefit both consumers and 

businesses, the Commission proposes to 

retain them. As discussed below, 

however, the Commission proposes 

several revisions to ensure that the 

Guides reflect consumer perception and 

new claims in the marketplace. 

B. Industry Compliance 

1. Comments 

In response to questions about 

industry compliance with the Guides, 

some commenters asserted that 

deceptive marketing claims have 

increased in the environmental area.30

For example, TerraChoice 

Environmental Marketing, Inc. reported 

the results of its 2007 review of over 

1,000 products and expressed concern 

that many marketers are using vague 

claims, such as ‘‘environmentally 

friendly’’ and ‘‘green,’’ without defining 

terms or providing evidence to support 

their claims.31 It also noted that many 

marketers ‘‘highlight relatively 

insignificant environmental benefits of a 

product while distracting consumers 

from much more significant impacts.’’32

Another commenter observed that 

companies are marketing the 

‘‘environmentally friendly’’ nature of 

their products ‘‘through words or 

pictures while only minimally (if at all) 

qualifying such claims.’’33 In addition, 

other commenters noted increased 

instances of ‘‘greenwashing’’ by 

marketers using a ‘‘plethora of 

buzzwords like sustainable, 

environmentally friendly, carbon 

offsets, [and] green.’’34 Some 

commenters suggested that bringing 

more enforcement actions could help 

address this issue.35

Commenters also expressed concern 

that the Guides may not be effectively 

reaching industry because many 

businesses are unfamiliar with them or 

do not realize that they apply to 

business-to-business transactions.36 For 

example, one commenter asserted that 

the Guides have provided no benefit to 

the small business community, stating 

that key players in the printing industry 

do not know about the Green Guides.37

Packaging workshop panelist 

Environmental Packaging International 

described a visit to a recent packaging 

trade show and noted that, in its 

estimation, 20 percent of the exhibitors 

were making misleading claims about 

the environmentally preferable qualities 

of their packaging.38

Panelist NatureWorks LLC echoed 

this concern, noting that even industry 

members familiar with the Guides are 

not aware that they apply to businessto-business transactions.39 Workshop 

panelists, therefore, recommended that 

the Guides emphasize their application 

to business-to-business transactions and 

not just business-to-consumer 

marketing.40 Environmental Packaging 

International proposed, for instance, 

that the Guides include specific 

examples of such business-to-business 

transactions.41

2. Analysis 

The Guides’ purpose is to help 

marketers avoid making unfair or 

deceptive environmental claims. For 

marketers who nevertheless violate the 

law, the Commission will continue its 

enforcement efforts. The Commission 

brought several recent actions involving 

false or unsubstantiated environmental 

claims. For example, last year, the 

Commission announced three actions 

charging marketers with making false 

and unsubstantiated claims that their 

products were biodegradable.42 In 

addition, the Commission charged four 

sellers of clothing and other textile 

products with deceptively labeling and 

advertising these items as made of 

bamboo fiber, manufactured using an 

environmentally friendly process, and/ 

or biodegradable.43

The Commission proposes revising 

the Guides to state more clearly that 

they apply to business-to-business 

transactions and not just business-tomstockstill on DSKH9S0YB1PROD with PROPOSALS2

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44 A business consumer may interpret a 

marketer’s claims differently than an individual 

consumer. As stated in the FTC Policy Statement 

on Deception (‘‘Deception Policy Statement’’), 

appended to Cliffdale Associates, Inc., 103 F.T.C. 

110, 174 (1984), ‘‘[w]hen representations or sales 

practices are targeted to a specific audience, the 

Commission determines the effect of the practice on 

a reasonable member of that group. In evaluating a 

particular practice, the Commission considers the 

totality of the practice in determining how 

reasonable consumers are likely to respond.’’ 

Marketers, therefore, must understand how their 

ads will be interpreted by their customers. 

45 See Section 260.6, Example 4; Section 260.12, 

Example 11. 

46 See, e.g., GMA, Green Packaging Workshop Tr. 

at 111-115. 

47 See GMA, Green Packaging Workshop Tr. at 

111 (discussing a 2008 online survey showing that 

80 percent of the 6,000 consumers interviewed use 

the Internet to obtain information about 

environmental initiatives and products); GMA, 

Comment 533431-00045 at 4; see also Cone LLC, 

Comment 534743-00007 at 8 (noting that when 

seeking additional information about a product’s 

environmental aspects, consumers examine the 

company’s website, third-party websites, search 

engines, and the package). 

48 SDA, Comment 534743-00028 at 4. 

49 Id. 

50 SDA, Comment 534743-00028 at 4. SDA, 

however, did not set forth these circumstances. 

51 NatureWorks, Green Packaging Workshop Tr. 

at 230; see also AF&PA, Comment 534743-00031 at 

2 (stating that specific sectors should be able to 

develop focused definitions of sustainability that 

meet the needs of that sector and that references to 

websites should be sufficient to provide the 

necessary explanation). 

52 SPI, Comment 534743-00034 at 3; see also 

Brenda Platt, Institute for Local Self-Reliance 

(‘‘ILSR’’), Green Packaging Workshop Tr. at 148 

(suggesting that consumers could search a website 

to identify composting facilities). 

53 SPI, Comment 534743-00034 at 4 (emphasis in 

original). 

54 EHS, Comment 534743-00011 at 2; see also 

EnviroMedia Social Marketing, Comment 534743- 

00032 at 1 (stating that companies making claims 

about their carbon footprint should be required to 

list a website to substantiate those claims); 

TerraChoice, Green Packaging Workshop Tr. at 207 

(noting that marketers should make claim 

substantiation available to consumers via websites 

and toll-free numbers). 

55 EHS, Comment 533431-00057 at 2. 

56 Deception Policy Statement, 103 F.T.C. at 174. 

57 ISO is a non-governmental organization which 

develops voluntary manufacturing and trade 

standards, including standards for self-declared 

environmental marketing claims. ISO 14021:1999(E) 

Environmental labels and declarations – Selfdeclared environmental claims (Type II 

environmental labeling). 

58 Dow, Comment 533431-00010 at 4 (noting, 

however, that the Commission should not follow 

14021’s ‘‘outdated’’ prohibition on sustainability); 

AF&PA, Comment 533431-00019 at 3; CSPA, 

Comment 533431-00049 at 2; EPI, Comment 

533431-00063 at 4; EPA Environmental Preferable 

Purchasing Program (‘‘EPA-EPPP’’), Comment 

533431-00038 at 6; FBA, 533431-00015 at 2; 

Foodservice Packaging Institute (‘‘FPI’’), Comment 

533431-00074 at 3; Georgia-Pacific, Comment 

533431-00007 at 6; GreenBlue, Comment 533431- 

00058 at 6; MeadWestvaco, Comment 533431-00013 

at 2; SDA, Comment 533431-00020 at 2-3. 

consumer marketing.44 The proposed, 

revised section on the ‘‘Purpose, Scope, 

and Structure of the Guides’’ (260.1) 

explains that the Guides apply to the 

marketing of products and services to 

‘‘individuals, businesses, or other 

entities.’’ 

Moreover, the proposed, revised 

Guides include specific business-tobusiness transaction examples.45

Additionally, to increase businesses’ 

familiarity with the revised Guides, the 

Commission plans to expand its 

outreach efforts. 

C. Changes in Technology or Economic 

Conditions 

1. Comments 

The Notice asked commenters to 

discuss what modifications, if any, the 

Commission should make to the Guides 

to account for changes in relevant 

technology or economic conditions. In 

response, many commenters and 

workshop panelists observed that 

companies increasingly use the Internet 

to communicate with consumers about 

their environmental efforts,46 and more 

consumers use the Internet to check on 

product claims and learn about 

products’ environmental attributes.47

The Soap and Detergent Association, for 

example, noted that the ‘‘quality and 

accessability of online technology has 

greatly advanced’’ since the FTC 

released the Guides.48 In its view, 

company websites have become an 

increasingly valuable and growing 

source of clarifying information for 

consumers about product benefits 

without the space limitations of 

packaging.49

Accordingly, some commenters 

suggested that the Guides specifically 

address the Internet and the 

opportunities it provides for increasing 

consumer access to product 

information. For example, the Soap and 

Detergent Association asked the FTC to 

determine appropriate circumstances in 

which information on a company 

website would be sufficient to explain 

an environmental claim.50 Similarly, 

NatureWorks stated that the Guides 

should indicate that ‘‘it is acceptable to 

provide further levels of information on 

a website.’’51 The Society of the Plastics 

Industry suggested that the FTC 

consider allowing qualifiers that refer to 

websites, which would give companies 

a means of providing more accurate and 

detailed information about the 

availability of recycling facilities than 

can be provided on a typical package.52

According to this commenter, 

encouraging consumers to visit a 

website for information on available 

recycling options would ‘‘both empower 

consumers to educate themselves about 

recycling options . . . and provide them 

the necessary roadmap by which to find 

recycling information quickly and 

readily, without a significant risk of 

prompting undesirable consumer 

behavior (e.g., putting an item that 

cannot be recycled locally into the 

curbside recycling bin . . . .).’’53

Along these lines, EHS Strategies, 

Inc., noting the pervasiveness of general 

environmental benefit terms such as 

‘‘eco’’ and ‘‘green’’ in marketing, 

suggested that the Guides recommend 

that package labeling include a website, 

telephone number, or address so that 

consumers can obtain a detailed 

explanation of a product’s 

environmental attributes.54 However, 

this commenter cautioned that ‘‘[w]hile 

reference to third-party standards and 

websites are useful, they are likely not 

. . . investigated by the consumer at point 

of purchase. Insofar as possible, 

sufficient point of sale information 

should be made available to the 

consumer as to what the 

environmentally preferred attributes 

are.’’55

2. Analysis 

Using the Internet, marketers can 

provide consumers with useful 

environmental information about 

products, packages, and services. 

However, websites cannot be used to 

qualify otherwise misleading claims that 

appear on labels or in other 

advertisements because consumers 

likely would not see that information 

before their purchase. Any disclosures 

needed to prevent an advertisement 

from being misleading must be clear and 

prominent and in close proximity to the 

claim the marketer is qualifying.56

These requirements help ensure that 

consumers notice, read, and understand 

disclosures to prevent deception. 

D. International Laws 

1. Comments 

The Commission also sought 

comment on whether it should consider 

international laws, regulations, or 

standards with respect to environmental 

marketing claims in its Guides review. 

In response, many commenters 

recommended that the Commission 

harmonize the Green Guides with the 

International Organization for 

Standardization (‘‘ISO’’) 14021 

environmental marketing standards57 or 

at least incorporate some of its 

provisions.58

For example, one commenter 

observed that because several countries 

are in the process of adopting ISO 

14021, the FTC should either align the 

Guides with ISO standards or clarify 

whether products labeled according to 

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59 AF&PA, Comment 533431-00019 at 3; see also 

Georgia-Pacific, Comment 533431-00007 at 6. 

60 ISO states that marketers must qualify 

recyclable claims if recycling facilities are not 

conveniently available to a ‘‘reasonable proportion’’ 

of purchasers where the product is sold. ISO 14021 

7.7.2:1999(E). In contrast, the Guides provide that 

marketers should qualify recyclable claims if 

recycling facilities are not available to a ‘‘substantial 

majority’’ of consumers or communities where the 

product is sold. See 16 CFR 260.7(d), Example 4. 

61 MeadWestvaco, Comment 533431-00013 at 3; 

see also Georgia-Pacific, Comment 533431-00007 at 

6 (suggesting that the Commission address 

discrepancies such as the definition of ‘‘postconsumer’’ fiber, the references to access to 

recycling and composting facilities, and the 

treatment of the Mo ̈bius Loop); Paper Recycling 

Coalition (‘‘PRC’’), Comment 533431-00035 at 1 

(noting that the Guides should incorporate ISO 

definitions of recycling and post-consumer recycled 

content because competing definitions currently 

cause consumer confusion). 

62 Georgia-Pacific, Comment 533431-00007 at 3- 

4 (citing ISO 14040 and 14044); see also ACC, 

Comment 533431-00023 at 5; GreenBlue, Comment 

533431-00058 at 6; P&G, Comment 533431-00070 at 

3; Personal Care Products Council (‘‘PCPC’’), 

Comment 533431-00075 at 4; Preston, Comment 

533431-00021 at 1; SDA, Comment 533431-00020 at 

2-3. 

63 NAIMA, Comment 533431-00042 at 12; SaintGobain, Comment 533431-00037 at 11-12. 

64 The introduction to the ISO 14000 series 

describes the ‘‘Objective of environmental labels 

and declarations’’ as follows: ‘‘The overall goal of 

environmental labels and declarations is, through 

communication of verifiable and accurate 

information, that is not misleading, on 

environmental aspects of products and services, to 

encourage the demand for and supply of those 

products and services that cause less stress on the 

environment, thereby stimulating the potential for 

market-driven continuous environmental 

improvement.’’ ISO 14020 3:2000(E). 

65 NAIMA, Comment 533431-00042 at 2, 11; 

Saint-Gobain, Comment 533431-00031 at 3,11. 

66 NAIMA, Comment 533431-00042 at 11; SaintGobain, Comment 533431-00031 at 11. 

67 EPI, Comment 533431-00063 at 4. 

68 Id., citing Cal. Pub. Res. Code §§ 42355-42357, 

42359-42359.6. ASTM International (‘‘ASTM’’) is an 

international standards organization that develops 

and publishes voluntary consensus technical 

standards for a wide range of materials, products, 

systems, and services. 

69 International Paper, Comment 533431-00055 at 

3. 

70 EPA-EPPP, Comment 533431-00038 at 7. 

71 Indeed, since 1996, California has required 

marketers to follow the Green Guides. See Cal. Bus. 

& Prof. Code § 17580-81. 

72 16 CFR 260.2. 

ISO 14021 comply with the Guides 

when there is a discrepancy.59 Another 

commenter stressed the importance of 

‘‘close alignment with global standards,’’ 

noting that the discrepancy in how the 

Green Guides and ISO treat recyclable 

claims60 causes problems with 

transnational packaging.61

In addition, several commenters 

suggested that the FTC look to ISO for 

guidance on how to conduct a life cycle 

analysis to ensure consistency in the 

increasing number of claims using life 

cycle assessments for substantiation.62

Two commenters, however, urged the 

FTC not to fully harmonize the Green 

Guides with international standards 

because ‘‘the obstacles and barriers to 

maintaining, changing or modifying, 

updating, and revising the system may 

be enormous’’ and could cause 

‘‘tremendous effort and delay.’’63

2. Analysis 

Because the FTC tries to harmonize its 

guidance with international standards 

when appropriate, the Commission gave 

careful consideration to relevant ISO 

provisions during the course of its 

review. The goals and purposes of ISO 

and the Green Guides, however, are not 

necessarily congruent. The Guides’ 

purpose is to prevent the dissemination 

of misleading claims, not to encourage 

or discourage particular environmental 

claims or consumer behavior based on 

environmental policy concerns. ISO, in 

contrast, focuses not only on preventing 

misleading claims, but also on 

encouraging the demand for and supply 

of products that may cause less stress on 

the environment.64 In part because of 

this difference, the proposed Guides do 

not necessarily align with the ISO 

standards. The Commission further 

discusses ISO standards and any 

inconsistencies with the proposed 

Guides in the relevant sections: 

(1) General Environmental Benefit 

Claims (Part IV.A); (2) Recyclable Claims 

(Part IV.E); (3) Recycled Content Claims 

(Part IV.F); and (4) Free-of and Nontoxic Claims (Part IV.H). 

E. Overlap with Other Federal, State, or 

Local Laws 

1. Comments 

The Commission sought comment on 

whether the Guides overlap or conflict 

with other federal, state, or local laws or 

regulations, and if so, how. Most 

commenters did not identify any 

specific overlap or conflict. Two 

commenters, however, Saint-Gobain and 

the North American Insulation 

Manufacturers Association, expressed 

concern about the array of guidelines 

and standards emerging from local, 

state, and federal government agencies, 

noting that conflicting and competing 

guidelines vary in quality and, 

therefore, consumer utility.65 Both 

commenters urged the FTC to ‘‘consider 

preempting state and local laws and 

regulations that are inconsistent with or 

frustrate the purposes of the Guides.’’66

Neither commenter, however, cited a 

specific law or regulation. 

Commenter Environmental Packaging 

International noted that the state of 

California has ‘‘more specific 

requirements than the Guides regarding 

the use of environmental marketing 

claims related to plastic packaging.’’67

For example, EPI stated that California 

requires that plastic bags and food and 

beverage containers labeled as 

‘‘compostable,’’ ‘‘biodegradable,’’ or 

‘‘degradable’’ or marketed using similar 

terms comply with the applicable 

ASTM International standard for the 

term used.68 In contrast, the Green 

Guides do not refer to a particular 

industry standard. 

International Paper observed that, 

although it is not aware of any specific 

conflicts with federal, state, and local 

laws, the Green Guides may conflict 

with nongovernmental and international 

voluntary standards, such as ASTM’s 

compostability standard.69 It 

recommended that the FTC monitor 

these standards to try to eliminate any 

such issues. It also suggested that the 

FTC coordinate with other federal 

agencies. For example, it suggested that 

the FTC coordinate with the 

Environmental Protection Agency 

(‘‘EPA’’) in the recycling area to make 

policy and product labeling consistent 

with current marketplace reality. 

Similarly, EPA’s Environmentally 

Preferable Purchasing Program 

suggested that the Guides specifically 

state that ‘‘environmentally preferable’’ 

claims ‘‘should follow established 

guidance in this area, such as EPA’s 

Guidance on Environmentally 

Preferable Purchasing, which 

emphasizes that such determinations 

should take into account multiple 

environmental attributes throughout the 

product’s life cycle.’’70

2. Analysis 

Based on a review of the comments, 

the Green Guides do not appear to 

significantly overlap or conflict with 

other federal, state, or local laws. 

Although some commenters discussed 

the potential for conflict, none cited any 

particular conflicting laws. State law 

may be different from the Green Guides, 

but such differences do not necessarily 

present a conflict. For example, a 

company may follow the Green Guides’ 

provisions on biodegradability and 

compostability and still comply with 

California’s specific requirements that 

plastic bags and containers labeled as 

‘‘biodegradable’’ and ‘‘compostable’’ meet 

ASTM standards.71 Additionally, 

although some commenters sought FTC 

preemption of state and local laws, the 

Green Guides are not enforceable 

regulations and, therefore, cannot be 

legally preemptive.72

One commenter recommended that 

the Commission coordinate with other 

federal agencies. The Commission 

actively consults with other agencies, 

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73 See Part VI.B, infra. 

74 See (http://www.epa.gov/nrmrl/lcaccess/pdfs/ 

600r06060.pdf). 

75 See (http://www.epa.gov/epp/pubs/guidance/ 

finalguidance.htm). 

76 Id. 

77 16 CFR 260.7 n.2. 

78 SDA, Comment 534743-00028 at 3 (noting that 

procedures for a life cycle analysis are now part of 

ISO environmental management standards found 

under ISO 14000); Susan Selke, Michigan State 

University (‘‘Michigan State Univ.’’), Green 

Packaging Workshop Tr. at 163 (stating that in 

addition to ISO, there are numerous LCA standards, 

including certain Canadian standards and standards 

collected on EPA’s website). 

79 See, e.g., GMA, Comment 533431-00083 at 10; 

PCPC, Comment 533431-00075 at 4; SDA, Comment 

533431-00020 at 2; SPI, Comment 533431-00036 at 

11. 

80 Georgia-Pacific, Comment 533431-00007 at 7. 

81 See, e.g., Michigan State Univ., Green 

Packaging Workshop Tr. at 188 (observing that LCA 

is not yet well understood by industry, academics, 

or consumers); Thomas R. Reardon, The Business 

and Institutional Furniture Manufacturer’s 

Association (‘‘BIFMA’’), Green Building and Textiles 

Workshop Tr. at 246-247. 

82 John Delfausse, Este ́e Lauder Companies 

(‘‘Este ́e Lauder’’), Green Packaging Workshop Tr. at 

186; Michigan State Univ., Green Packaging 

Workshop Tr. at 186; see also ACC, Comment 

533431-00023 at 5 (suggesting that LCA can be a 

useful tool in identifying marketing claims and 

what type of substantiation or qualification is 

necessary). 

83 Michigan State Univ., Green Packaging 

Workshop Tr. at 163 (asserting she would ‘‘never 

advocate trying to summarize LCA results on a 

package’’). 

84 EHS, Comment 534743-000211 at 1; see also 

Este ́e Lauder, Green Packaging Workshop Tr. at 186 

(noting that although consumers are interested in 

information pertaining to the life cycle and 

sustainability aspects of packaging, Este ́e Lauder 

does not recommend encouraging such claims in 

the Guides). 

85 Univ. of Minnesota, Comment 536013-00004 at 

1. 

86 Id. 

87 Este ́e Lauder, Green Packaging Workshop Tr. 

at 189 (noting that the Sustainable Packaging 

Coalition is working on a label concept, and stating 

that it is important to the industry to have some 

type of ‘‘nutritional’’ label that will be globally 

acceptable). 

88 See Part V.A, infra. 

89 See, e.g., Este ́e Lauder, Green Packaging 

Workshop Tr. at 176; GPI, Comment 534743-00026 

at 10; SDA, Comment 534734-00026 at 3; Michigan 

State Univ., Green Packaging Workshop Tr. at 161. 

such as the EPA, the Department of 

Energy (‘‘DOE’’), and the Department of 

Agriculture (‘‘USDA’’), regarding their 

areas of expertise to ensure that the 

Commission does not issue guidance 

that duplicates or possibly conflicts 

with their regulations and programs. For 

example, as discussed below, the 

Commission does not propose specific 

guidance for organic claims about 

agricultural products that already are 

covered by the USDA’s regulations.73

F. Life Cycle Analysis 

Life cycle analysis (‘‘LCA’’) refers to 

the assessment of a product’s 

environmental impact through all the 

stages of its ‘‘life.’’ The EPA defines the 

term ‘‘life cycle’’ as ‘‘the major activities 

in the course of the product’s life-span 

from its manufacture, use, and 

maintenance, to its final disposal, 

including the raw material acquisition 

required to manufacture the product.’’74

As the EPA notes in its Final Guidance 

on Environmentally Preferable 

Purchasing, in the context of making 

purchasing decisions, the term ‘‘life 

cycle’’ has several interpretations: ‘‘[t]o 

some, it connotes an exhaustive, 

extremely time-consuming, and very 

expensive analysis. To others, a life 

cycle perspective is possible in an 

abbreviated process, in which a long list 

of potential environmental attributes 

and/or impacts is narrowed to a few, 

allowing for comparison across a 

particular product category.’’75

Accordingly, in its Final Guidance on 

Environmentally Preferable Purchasing, 

EPA states that it ‘‘promotes the use of 

a range of practices, from life cycle 

considerations to a more rigorous, 

scientifically defensible life cycle 

assessment methodology.’’76

The current Green Guides do not 

provide guidance on life cycle claims. 

Instead, the Guides include a footnote 

indicating that the Guides do not 

address such claims because the 

Commission ‘‘lacks sufficient 

information on which to base 

guidance.’’77

1. Comments 

Several commenters discussed 

whether and how the FTC should 

provide LCA guidance. Many noted 

that, since the last Guides review, LCA 

has become both a more accepted and 

better defined process,78 and marketers 

increasingly utilize LCA to assess the 

environmental effect of their products.79

For example, Georgia-Pacific observed 

that the international expert community 

in life cycle assessment has developed 

and agreed on requirements for making 

environmental comparisons or 

assertions to the public, which the 

series of ISO 14040 and 14044 standards 

reflect.80 Other panelists, however, 

asserted that LCA is still an emerging 

concept.81

In particular, commenters discussed: 

(1) whether marketers should refer 

directly to LCAs in marketing materials; 

and (2) whether marketers should 

substantiate certain claims with an LCA 

and, if so, whether the Guides should 

address LCA substantiation 

methodologies. 

a. LCAs as Marketing Claims 

Because of the complexity of LCAs, 

several commenters asserted that life 

cycle analysis should be regarded as a 

decision-making tool to help improve 

environmental outcomes, rather than as 

a marketing claim.82 A participant in the 

Green Packaging Workshop, Susan 

Selke, for example, viewed life cycle 

analysis as ‘‘the right philosophical 

approach’’ for making decisions, but 

discouraged its use for communicating 

information or making claims to 

consumers, on the grounds that one 

must ‘‘interpret LCA in context for it to 

be meaningful.’’83 Similarly, EHS 

Strategies, Inc., commented that terms 

such as ‘‘cradle to cradle’’ and ‘‘life 

cycle’’ are ill-defined, comprised of 

multiple factors, and not amenable to 

understanding on a package label.84

In contrast, one commenter reported 

the results of a study finding that LCA 

information showing quantitative and 

specific environmental impact 

information in an advertisement 

positively influences consumers’ 

attitudes toward an advertisement, 

brand, company, and intention to 

purchase a product.85 The commenter 

concluded that ‘‘LCA-based metrics’’ 

may be the best method for effective 

communication of environmental 

attributes.86 Another commenter stated 

it would support the use of a 

standardized label conveying the results 

of an LCA to consumers, such as an 

approach akin to the Food and Drug 

Administration’s (‘‘FDA’’) Nutrition 

Facts Label.87

b. LCAs as Substantiation 

Commenters also debated whether a 

full LCA should be required to 

substantiate environmental claims. 

While some commenters argued that 

marketers should be required to conduct 

a full LCA to support general 

environmental benefit claims, others 

argued that this would not be feasible 

due to inconsistent methodologies, 

complexity, and expense.88

Moreover, some commenters 

suggested that the Guides could help 

ensure that companies conducting LCAs 

do so in a manner that meets the FTC’s 

substantiation standards.89 In particular, 

the Glass Packaging Institute suggested 

that the Guides expressly state that 

LCAs must meet the FTC’s 

substantiation standard for 

environmental claims, which requires 

that marketers have ‘‘competent and 

reliable scientific evidence, defined as 

tests, analyses, research, studies or other 

evidence based on the expertise of 

professionals in the relevant area, 

conducted and evaluated in an objective 

manner by persons qualified to do so, 

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63560 Federal Register / Vol. 75, No. 199 / Friday, October 15, 2010 / Proposed Rules 

90 See, e.g., GPI, Comment 534743-00026 at 10 

(citing 16 CFR 260.5). 

91 ACC, Comment 536013-00030 at 4; 

NatureWorks, Green Packaging Workshop Tr. at 

217-18; see also Georgia-Pacific, Comment 533431- 

00007 at 7 (noting that the Guides should provide 

that claims based on LCA studies be conducted 

with the full analysis required by ISO 14044); P&G, 

Comment 533431-00070 at 2 (‘‘While not all claims 

require a full LCA, recognizing acceptable 

international standards for LCA will help ensure 

consistency in claims that do rely upon LCAs for 

substantiation.’’); SPI, Comment 533431-00036 at 12 

(stating that the scope of the LCA may differ from 

advertiser to advertiser); USGBC, Comment 536013- 

00029 at 10-11 (suggesting that if the FTC addresses 

LCA, it should adopt a particular LCA approach, 

such as the National Renewable Energy Laboratory’s 

Life Cycle Inventory Database Project, or set forth 

specific LCA parameters that standardize the 

relevant impact categories, life cycle stages, and 

service periods that are the basis of these 

assessments). 

92 The Commission did not test consumer 

perception of life cycle claims in marketing, i.e., 

claims in which the environmental impacts of a 

product throughout a product’s life cycle are 

featured in an advertisement or label. The 

University of Minnesota submitted a study that 

examined life cycle-based information in marketing. 

This study, however, focused on consumer 

perceptions toward the advertiser and the brand, as 

well as ‘‘message credibility,’’ rather than consumer 

understanding of environmental claims. Comment 

536013-00004 at 1. 

93 Taking an average across all 15 tested claims 

(net of control), only nine percent of respondents 

indicated they thought of all four stages of a 

product’s life cycle when viewing a claim. 

94 Footnote 2 of the Guides currently states that 

the Guides do not address LCA claims. 16 CFR 

260.7 n.2. The Guides also do not address other 

environmental claims, but they do not specifically 

identify these claims. For consistency, the 

Commission proposes deleting this footnote. 

95 16 CFR 260.7(a). 

96 Id. 

using procedures generally accepted in 

the profession to yield accurate and 

reliable results.’’90 Other commenters 

went further, noting that because life 

cycle analyses can vary in requirements 

and robustness, the Guides should 

indicate the LCA standards or 

methodologies that the Commission 

considers adequate.91

2. Consumer Perception Evidence 

The Commission’s study examined 

whether consumers believe that 

environmental claims such as ‘‘green,’’ 

‘‘eco-friendly,’’ or ‘‘made with recycled 

materials’’ suggest anything about the 

environmental impact of a product 

through its life cycle.92 For consumers 

who do think about a product’s life 

cycle, the study explored whether they 

think of more than one stage in that 

cycle and, if they do, which of the four 

specific stages (i.e., production, 

transportation, use, and disposal). Only 

16 percent of respondents viewing 

‘‘green’’ claims and 14 percent of 

respondents viewing ‘‘eco-friendly’’ 

claims thought about each of the life 

cycle stages.93

3. Analysis 

After reviewing the comments and the 

results of its consumer perception 

study, the Commission has decided not 

to propose guidance about the use of life 

cycle information either in marketing or 

as substantiation for environmental 

claims.94 First, the Commission lacks 

information about how consumers 

interpret life cycle claims in marketing. 

Moreover, due to the complexity and 

variability of these claims, general 

advice is unlikely to be useful in any 

particular case. Therefore, the 

Commission will continue to analyze 

these claims on a case-by-case basis. 

Second, the Commission declines to 

propose advising marketers either to 

conduct an LCA to substantiate 

environmental claims or to follow a 

particular LCA methodology. Relatively 

few respondents viewing broad 

environmental claims (approximately 15 

percent) considered each of the life 

cycle stages. Therefore, the results of the 

study do not provide a basis for advising 

marketers to conduct an LCA to 

substantiate environmental claims. 

Marketers may rely on the results of an 

LCA as all, or part of, their 

substantiation, as long as they ensure 

that the LCA results constitute 

competent and reliable scientific 

evidence to support their claims. The 

Commission has no basis for choosing 

one LCA methodology over another. 

Accordingly, the Commission will 

continue to apply its substantiation 

analysis to claims relying on an LCA to 

determine whether the assessment: (1) 

has been conducted and evaluated in an 

objective manner by qualified persons 

and is generally accepted in the 

profession to yield accurate and reliable 

results; and (2) the LCA is sufficient in 

quality and quantity based on standards 

generally accepted in the relevant 

scientific fields, when considered in 

light of the entire body of relevant and 

reliable scientific evidence, to 

substantiate that each of the marketer’s 

claims is true. 

V. Claims Addressed by the Current 

Green Guides 

The Commission requested comment 

on what changes, if any, it should make 

to its existing guidance on specific 

claims (currently, in Section 260.7). 

This part of the Notice summarizes the 

comments and relevant workshop 

discussions, reviews the consumer 

perception evidence, and provides the 

Commission’s analysis of: (1) general 

environmental benefit claims; 

(2) certifications and seals of approval; 

(3) degradable claims; (4) compostable 

claims; (5) recyclable claims; 

(6) recycled content claims; (7) ozonesafe and ozone-friendly claims; (8) freeof and non-toxic claims; (9) source 

reduction claims; and (10) refillable 

claims. 

A. General Environmental Benefit 

Claims 

1. The Current Guides 

The current Guides section on general 

environmental benefit claims ( e.g ., 

‘‘environmentally friendly’’) states: 

‘‘[u]nqualified general claims of 

environmental benefit are difficult to 

interpret, and depending on their 

context, may convey a wide range of 

meanings to consumers. In many cases, 

such claims may convey that the 

product, package, or service has specific 

and far-reaching environmental 

benefits.’’95 The Guides remind 

marketers that they have a duty to 

substantiate ‘‘every express and material 

implied claim that the general assertion 

conveys to reasonable consumers about 

an objective quality, feature or attribute 

of a product.’’ Unless marketers can 

meet this ‘‘substantiation duty,’’ they 

should avoid, or qualify, these claims 

‘‘as necessary, to prevent deception 

about the specific nature of the 

environmental benefit being asserted.’’96

The following addresses the comments 

discussing general environmental 

benefit claims, the Commission’s 

relevant consumer perception study 

findings, and the Commission’s 

proposed, revised guidance for such 

claims. 

2. Comments 

As discussed below, many 

commenters asserted that general 

environmental benefit claims may 

confuse consumers and that the 

Commission should provide additional 

guidance on use of these claims, 

including what type of substantiation 

supports them and how marketers can 

effectively qualify them. Other 

commenters asserted that the Green 

Guides should prohibit general 

environmental claims altogether. 

a. Substantiating General Environmental 

Benefit Claims – Life Cycle 

Considerations 

Several commenters recommended 

that the Guides state that marketers 

making a general environmental claim 

have substantiation about the 

environmental impact of a product 

throughout its entire life cycle (see Part 

IV.F, supra, for a general discussion of 

comments regarding life cycle 

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Federal Register / Vol. 75, No. 199 / Friday, October 15, 2010 / Proposed Rules 63561 

97 See, e.g., Michigan State Univ., Green 

Packaging Workshop Tr. at 187 (‘‘[I]t is precisely 

those broad claims that should never be made 

unless you can back them up and the only way you 

could back them up would be with a full blown life 

cycle analysis.’’); Keith Christman, American 

Chemistry Council (‘‘ACC’’), Green Packaging 

Workshop Tr. at 210; GPI, Comment 534743-00026 

at 9-10. 

98 Unilever United States, Inc. (‘‘Unilever’’), 

Comment 534743-00030 at 1. 

99 EPA-SPN, Comment 536013-00062 at 4; see 

also P&G, Comment 533431-00070 at 3 (stating that 

in the absence of a life cycle analysis, comparative 

environmental claims should be limited to specific 

and verifiable parameters regarding the sourcing of 

raw materials, manufacturing, transportation, or 

packaging); Georgia-Pacific, Comment 533431- 

00007 at 3. 

100 Unilever, Comment 534743-00030 at 1-2. 

101 Specifically, EPA-SPN recommended that the 

following types of information provide ‘‘adequate 

substantiation’’ for general environmental benefit 

claims: ‘‘1) certification under voluntary consensus 

standards that include multiple environmental 

attributes based on consideration of the product’s 

life cycle; 2) certification under multi-attribute, life 

cycle-based eco-labeling programs, such as labeling 

programs that follow the requirements of the ISO 

14024 standard for Type 1 environmental labels; or 

3) life cycle analyses that follow the requirements 

of the ISO 14040-series of standards for life cycle 

assessment.’’ EPA-SPN, Comment 536013-00062 at 

11; see also EPA-EPPP, Comment 533431-00038 at 

6. 

102 Georgia-Pacific, Comment 533431-00007 at 3. 

103 BIFMA, Green Building and Textiles 

Workshop Tr. at 246; Sophia Greenbaum, 

Sustainable Buildings Industry Council (‘‘SBIC’’), 

Green Building and Textiles Workshop Tr. at 246 

(suggesting that there is no single methodology for 

establishing life cycle analysis); see also Green Seal, 

Green Building and Textiles Workshop Tr. at 247. 

104 Formaldehyde Council, Inc., Comment 

533431-00047 at 3. 

105 SDA, Comment 534734-00028 at 3 (stating the 

FTC should not require an LCA as substantiation for 

‘‘properly qualified, well-supported claims’’ due to 

the cost such a requirement would impose on small 

businesses, but that the Guides, nevertheless, 

should encourage marketers to conduct a ‘‘sufficient 

inquiry to avoid the use of claims . . . that do not 

acknowledge other significant environmental 

impacts associated with a product’s formulation 

process or its use’’); The Clorox Company 

(‘‘Clorox’’), Comment 534743-00017 at 1 (asserting 

that even when marketers are making general 

claims, they should not be required to conduct a life 

cycle assessment); see also ACC, Comment 533431- 

00023 at 5 (stating that LCA studies should not be 

a necessary precondition to making an 

environmental claim). 

106 Este ́e Lauder, Green Packaging Workshop Tr. 

at 176; Michigan State Univ., Green Packaging 

Workshop Tr. at 161. 

107 Krenn, Comment 533431-00014 at 5. 

108 Id. 

109 3M Company, Comment 533431-00027 at 3; 

see also EHS, Comment 533431-00057 at 2 

(suggesting that general claims should never appear 

without a clear statement of the product’s specific 

attributes and that ‘‘sufficient point of sale 

information should be made available to the 

consumer as to what the environmentally preferred 

attributes are’’). 

110 Banning general environmental benefit claims 

would be consistent with ISO 14021, which 

prohibits general environmental claims. 

Specifically, ISO 14021 provides that ‘‘[a]n 

environmental claim that is vague or non-specific 

or which broadly implies that a product is 

environmentally beneficial or environmentally 

benign shall not be used. Therefore, environmental 

claims such as ‘environmentally safe,’ 

‘environmentally friendly,’ ‘earth friendly,’ ‘nonpolluting,’ ‘green,’ ‘nature’s friend,’ and ‘ozone 

friendly’ shall not be used.’’ ISO 14021 5.3:1999(E). 

111 GreenBlue, Comment 533431-00058 at 4-5. 

analysis).97 For example, Unilever 

United States, Inc. asserted that 

marketers should review all aspects of 

the product’s life cycle to substantiate 

‘‘eco-friendly’’ claims because 

consumers reasonably interpret those 

claims to mean that the product as a 

whole offers a material environmental 

benefit and presents no significant 

environmental risk.98 Similarly, EPA’s 

Sustainable Products Network (‘‘EPASPN’’) asserted that ‘‘general claims that 

imply overall superiority in 

environmental performance must be 

substantiated by information that 

addresses multiple environmental 

attributes over the product’s life 

cycle.’’99

Although these commenters agreed 

about the importance of considering a 

product over its life cycle, they 

advocated different types and levels of 

substantiation. Unilever, for example, 

suggested that the FTC develop criteria 

under which marketers would have to 

address the major stages of a product’s 

life cycle – its production, packaging, 

formula/ingredients, and 

disposability.100 Under Unilever’s 

framework, if a company can meet 

eligibility standards for three out of 

these four criteria, it could still make a 

general environmental benefit claim as 

long as that unmet criterion is clearly 

and accurately disclosed (e.g., 

‘‘environmentally friendly, but not 

recyclable’’). 

EPA-SPN stated that a full 

quantitative life cycle assessment, 

‘‘while highly desirable,’’ is not 

necessary. Instead, marketers should 

demonstrate that they have addressed 

‘‘key attributes’’ from a life cycle 

perspective.101 Georgia-Pacific also 

suggested that the FTC ‘‘recognize the 

use of the ISO 14040 series standards 

when comparing products and, in 

particular, the need to include the life 

cycle impact assessment phase of the 

LCA as one essential requirement in 

. . . comparing products.’’102

Several other commenters, however, 

argued that the FTC should not require 

marketers making general 

environmental claims to conduct a full 

LCA. According to the Business and 

Institutional Furniture Manufacturer’s 

Association, while conducting an LCA 

is ‘‘an admirable aspiration,’’ the science 

concerning LCA is not sufficiently well 

established to mandate such a 

requirement.103 Similarly, the 

Formaldehyde Council, Inc. asserted 

that there is a debate regarding how 

various factors used in life cycle 

assessment are weighted in developing 

an overall assessment.104 Other 

commenters similarly argued that life 

cycle assessment should not be the only 

tool available to marketers to 

substantiate general environmental 

claims, explaining that LCAs are 

complex, difficult to interpret, and 

costly.105 Therefore, commenters noted 

that conducting an LCA may not be 

feasible even for large companies.106

b. Qualifying General Environmental 

Benefit Claims 

Some commenters recommended that 

the Guides provide additional advice on 

how marketers can effectively qualify 

general environmental benefits. For 

example, one commenter suggested that 

the Guides should advise marketers on 

how to use more effective qualifiers. 

This commenter specifically advised the 

Commission to require that 

qualifications be ‘‘clear, understandable, 

prominently displayed, and indicate an 

actual environmental benefit.’’107 This 

commenter also emphasized that a 

consumer evaluating an advertisement 

should be able to ‘‘quickly and easily tell 

that the environmental benefit that the 

product has is the specific 

environmental benefit indicated, not the 

wider general benefit included in the 

ad’s message – i.e., by such phrases as 

‘environmentally friendly.’’’108 Another 

commenter asserted that the FTC should 

provide examples of accompanying 

language that would be specific enough 

to allow the use of these types of 

claims.109

c. Prohibiting All General 

Environmental Benefit Claims 

Some commenters argued that by 

allowing general environmental benefit 

claims, even when qualified, the Guides 

facilitate deception.110 These 

commenters, therefore, recommended 

that the Green Guides prohibit all 

general environmental claims. For 

example, GreenBlue argued that there is 

no single definition of general 

environmental benefit terms such as 

‘‘green’’ or ‘‘environmentally friendly.’’ 

Therefore, their use only confuses 

consumers even if the terms are 

qualified with text that describes the 

specific attribute that contributes to 

their ‘‘green’’ status.111 GreenBlue noted 

that ‘‘environmental excellence’’ in one 

attribute can result in trade-offs in 

another. For example, the increased use 

of recycled content may require less 

energy for material production, but may 

result in greater weight and, therefore, 

higher energy costs for transportation. 

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63562 Federal Register / Vol. 75, No. 199 / Friday, October 15, 2010 / Proposed Rules 

112 EPA-SPN, Comment 536013-00062 at 4-5; see 

also EPI, Comment 533431-00063 at 4 (suggesting 

that the Commission revise the Guides to make 

clear that information about specific product 

attributes will not necessarily qualify general 

environmental claims); Rebekah Lacey (‘‘Lacey’’), 

Comment 533431-00062 at 2 (‘‘Manufacturers 

. . . should not be able to pick and choose the criteria 

they use to make general environmental benefit 

claims. Even if they disclose the criteria, they are 

still implying that the criteria are appropriate, 

which is inherently misleading if the criteria focus 

on a narrow aspect of the product’s life cycle 

environmental impact.’’); USGBC, Comment 

536013-00029 at 9 (noting that qualifying broad 

environmental claims based on a single product 

attribute may be misleading because it ignores the 

full impact of the product on the environment). 

113 See, e.g., Cone LLC, Comment 534743-00007 

at 2 (describing its February 2008 online survey of 

over 1,000 consumers and noting that 48 percent of 

respondents believed a product marketed as ‘‘green’’ 

or ‘‘environmentally friendly’’ has a ‘‘positive, (i.e., 

beneficial) impact’’ on the environment). 

114 The Commission tested the following 

qualified-general claims: ‘‘green - made with 

renewable materials’’; ‘‘green - made with renewable 

energy’’; ‘‘green - made with recycled materials’’; 

‘‘eco-friendly - made with renewable materials’’; 

‘‘eco-friendly - made with renewable energy’’; and 

‘‘eco-friendly - made with recycled materials.’’ 

115 This figure was derived by calculating an 

average of responses regarding six qualified-general 

claims (three of which qualified ‘‘green’’; three of 

which qualified ‘‘eco-friendly’’). When participants 

were asked to evaluate a claim that included one 

of the specific-attribute claims, such as ‘‘green - 

made with renewable materials,’’ we did not 

include responses regarding that attribute (‘‘made 

with renewable materials’’) in that calculation. 

116 This figure is based on the responses to a 

closed-ended question on what ‘‘green’’ or ‘‘ecofriendly’’ claims suggest or imply about any 

negative environmental impact resulting from the 

tested products. Responses to subsequent questions 

suggest that respondents were not all thinking about 

negative environmental impact in exactly the same 

way in answering this question. 

117 See, e.g., ACC, Comment 533431-00023 at 6; 

Clorox, Comment 534743-00017 at 1; 3M Company, 

Comment 533431-00027 at 3; Krenn, Comment 

533431-00014 at 2; TerraChoice, Comment 533431- 

00040 at 3. 

118 In December 2008, FTC staff conducted a 

review of Internet sites to investigate the nature and 

incidence of certain environmental marketing 

claims. See Green Marketing Internet Surf, A Report 

by the FTC’s Division of Enforcement (‘‘FTC Staff 

Internet Surf’’). 

119 In the FTC Staff Internet Surf, an express 

‘‘green’’ claim occurred in 49 percent of the 799 web 

pages containing general environmental claims, and 

eco-/earth-/environmentally ‘‘friendly’’ occurred in 

41 percent of them. 

120 For example, in the FTC Staff Internet Surf, 

on the 799 web pages with general environmental 

claims, renewability claims co-occurred on 36 

percent of the pages; carbon claims co-occurred on 

35 percent of them; recycled content claims cooccurred on 18 percent; and biodegradability claims 

co-occurred on 12 percent. 

121 This proposed guidance can be found in 16 

CFR 260.4. 

According to GreenBlue, because such 

trade-offs are sufficiently common, the 

Guides should discourage general 

environmental benefit claims, even 

when accompanied by a specificattribute qualifier, unless a company is 

willing to include a full explanation of 

environmental trade-offs. 

Similarly, EPA-SPN provided an 

example of a potentially deceptive 

qualified claim. It noted that a product 

advertised as ‘‘Eco-safe because of lowVOC content’’ implies that VOC content 

is the most important factor in 

determining ‘‘overall environmental 

performance.’’ EPA-SPN cautioned that 

it is not possible to know if this is 

actually the case without information on 

other product attributes. EPA-SPN, 

therefore, suggested that marketers 

‘‘state the claim in terms of the relevant 

attribute without implying broader 

environmental benefit, e.g., ‘‘100% postconsumer content’’ or ‘‘low VOC.’’ EPASPN also recommended that any further 

description be limited to a statement of 

environmental benefit directly related to 

the attribute. Thus, according to EPASPN, a claim such as ‘‘Low VOC – 

promotes cleaner air’’ would be proper 

because ‘‘VOC emissions have a clear 

relationship to air quality.’’112

3. Consumer Perception Evidence 

Only a few commenters submitted 

consumer perception evidence 

addressing general environmental 

benefit claims.113 Thus, the 

Commission’s study focused on this 

issue. The study examined whether both 

unqualified and qualified general green 

claims suggested that the product has 

particular environmental benefits. 

Specifically, the study asked 

respondents whether these types of 

claims conveyed that the product had 

any of the following seven 

environmental attributes: made from 

recycled materials, made with 

renewable materials, recyclable, made 

with renewable energy, biodegradable, 

non-toxic, and compostable. Thus, for 

example, would consumers viewing a 

‘‘green’’ or an ‘‘eco-friendly’’ claim think 

that the advertised product had specific 

green attributes, such as being made 

with recycled materials or being 

recyclable? Additionally, if the general 

green claim were qualified with a 

specific environmental attribute, such as 

‘‘green - made with renewable 

materials,’’ would consumers think the 

product had environmental benefits 

beyond the specific attribute 

mentioned?114

Averaging across the seven attributes, 

52 percent of respondents viewing an 

unqualified ‘‘green’’ claim indicated that 

they believed that the product had a 

specific attribute about which the 

survey asked. In particular, responses 

for individual attributes ranged from 61 

percent (product is made from recycled 

materials) to 40 percent (product is 

compostable). The responses concerning 

an unqualified ‘‘eco-friendly’’ claim 

were similar. Averaging across the seven 

attributes, 49 percent indicated that the 

claim suggested that the product had a 

particular attribute. Specifically, 

responses for individual attributes 

ranged from 56 percent (product is 

made from recycled materials) to 36 

percent (product is made with 

renewable energy). When the general 

environmental claims were qualified, 

however, on average, 31 percent of 

consumers indicated that the claim 

implied specific environmental benefits 

in addition to the attribute stated.115

In addition to asking consumers about 

unqualified and qualified-general 

environmental benefit claims, the study 

asked consumers how they perceive 

certain specific-attribute claims alone 

(i.e., claims that a product is ‘‘made with 

recycled materials,’’ ‘‘made with 

renewable materials,’’ or ‘‘made with 

renewable energy’’). This allowed the 

Commission to compare qualifiedgeneral claims to specific-attribute 

claims to determine the extent to which 

the general environmental claim (e.g., 

‘‘green,’’ ‘‘eco-friendly’’) contributed to 

consumer perceptions. On average, 23 

percent of respondents viewing specificattribute claims indicated that the claim 

implied specific benefits in addition to 

the attribute stated. 

The study further examined whether 

consumers believe that environmental 

claims suggest anything about any 

negative environmental impact that may 

come from the product. Twenty-seven 

percent of respondents interpreted the 

unqualified claims ‘‘green’’ and ‘‘ecofriendly’’ as suggesting the product has 

no negative environmental impact.116

Sixteen percent of respondents viewing 

a qualified ‘‘green’’ claim and 17 percent 

of those viewing a qualified ‘‘ecofriendly’’ claim made the same 

inference, while only ten percent of 

respondents viewing a specific-attribute 

claim made this inference. 

4. Analysis and Guidance 

Both the comments117 and FTC staff’s 

Internet surf118 indicate that general 

environmental claims are pervasive. 

Such general claims appear both 

alone119 and accompanied by specific 

claims.120 To address their potential for 

consumer deception, and based on the 

comments and the Commission’s 

consumer perception study, the 

Commission proposes advising 

marketers not to make unqualified 

general environmental benefit claims.121

The proposed, revised Guides also 

provide more prominent guidance on 

how to effectively qualify general 

environmental benefit claims. 

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122 As discussed above, the Commission tested 

the claims as they appeared on laundry baskets, 

kitchen flooring, and wrapping paper. The response 

rates for laundry baskets and kitchen flooring were 

very similar. A slightly larger percentage of 

respondents perceived wrapping paper to possess 

unstated environmental attributes. However, 

because the responses were interpreted net of a 

non-environmental control claim, the analysis 

largely eliminated this difference from the results. 

123 Of respondents viewing an ‘‘eco-friendly’’ 

claim, 57 percent believed the product is recyclable; 

56 percent believed the product is made from 

recycled materials; 55 percent believed it is 

biodegradable; 51 percent believed it is made with 

renewable materials; 47 percent believed it is nontoxic; 43 percent believed it is compostable; and 36 

percent believed it is made with renewable energy. 

The average value was 49 percent. 

124 FTC Policy Statement Regarding Advertising 

Substantiation (‘‘Substantiation Policy Statement’’), 

appended to Thompson Medical Co., 104 F.T.C. 

648, 839 (1984), aff’d, 791 F.2d 189 (D.C. Cir. 1986), 

cert. denied, 479 U.S. 1086 (1987). 

125 16 CFR 260.7(a). 

126 To calculate this number, the Commission 

took an average across all three qualified- ‘‘green’’ 

claims: ‘‘green - made with renewable materials’’; 

‘‘green - made with renewable energy’’; and ‘‘green 

- made with recycled materials.’’ The results are 

similar for qualified ‘‘eco-friendly’’ claims, where, 

on average, 32 percent of participants took away the 

specific, unstated attributes, compared to the 49 

percent who took away specific, unstated attributes 

when presented with the unqualified ‘‘eco-friendly’’ 

claim. 

127 On average, 31 percent of consumers viewing 

qualified-general claims and 23 percent of 

consumers viewing specific-attribute claims saw 

implied claims. 

128 On average, approximately 16 percent of 

consumers viewing qualified-general claims and 10 

percent of consumers viewing specific-attribute 

claims believed the claims implied no negative 

environmental impact. 

a. Unqualified General Environmental 

Benefit Claims 

The consumer perception evidence 

and some comments reaffirm the current 

Guides’ advice that unqualified general 

environmental benefit claims convey a 

range of meanings. For example, the 

Commission’s consumer perception 

study found that 61 percent of 

respondents viewing an unqualified 

‘‘green’’ claim believed the product is 

made from recycled materials; 59 

percent believed the product is 

recyclable; 54 percent believed the 

product is made with renewable 

materials; 53 percent believed the 

product is biodegradable; 48 percent 

believed the product is made with 

renewable energy; 45 percent believed 

the product is non-toxic; and 40 percent 

believed the product is compostable.122

Averaging across these seven attributes, 

52 percent of respondents viewing an 

unqualified ‘‘green’’ claim stated that the 

claim definitely or probably suggested 

that the product had these specific green 

attributes. The percentages are similar 

for respondents viewing an ‘‘ecofriendly’’ claim.123 Moreover, 27 percent 

of respondents interpreted the 

unqualified claims ‘‘green’’ and ‘‘ecofriendly’’ as suggesting the product has 

no negative environmental impact. 

Given these findings, and because 

FTC law requires marketers to 

substantiate every express and implied 

environmental benefit that consumers 

reasonably could take from such a 

claim,124 unqualified general 

environmental marketing claims remain 

very difficult, if not impossible, to 

substantiate. Very few products, if any, 

have all of the attributes consumers 

appear to perceive from general 

environmental benefit claims. In 

addition, given that all products have 

some environmental impact, it is 

doubtful that a marketer could 

substantiate that a product has no or 

negligible negative environmental 

impact. The Commission, therefore, 

proposes revising the Guides to more 

directly caution marketers not to make 

unqualified general environmental 

benefit claims. 

Because marketers should not make 

unqualified general environmental 

benefit claims, the Commission declines 

to adopt commenters’ suggestions that 

the Guides delineate the particular 

substantiation needed to support such 

claims. Moreover, unlike the approach 

taken by ISO 14021, which prohibits 

general environmental claims, the 

Commission does not propose advising 

marketers to never use a general 

environmental benefit claim. As 

discussed below, marketers may be able 

to effectively qualify these claims to 

focus consumers on the specific 

environmental benefits that marketers 

could substantiate. 

b. Qualified General Environmental 

Benefit Claims 

The current Guides state that 

marketers may make broad 

environmental claims if they are 

‘‘qualified, as necessary, to prevent 

deception about the specific nature of 

the environmental benefit being 

asserted.’’125 Through examples, the 

Guides also advise marketers that 

qualifications should be sufficiently 

‘‘clear and prominent’’ to convey the 

idea that the claim refers only to limited 

environmental benefits and that ‘‘no 

other deceptive implications are created 

by the context.’’ The Commission’s 

consumer perception study supports 

this advice by demonstrating that 

qualifying a general green claim reduces 

the number of respondents believing: 

(1) that a product has specific, unstated 

benefits; and (2) that a product has no 

negative environmental impact. 

First, as discussed above, on average, 

approximately half of the respondents 

viewing a general, unqualified ‘‘green’’ 

claim believed that the claim suggested 

specific, unstated environmental 

benefits. When viewing a qualified 

‘‘green’’ claim, on average, substantially 

fewer consumers (30 percent) believed 

that the claim suggested specific, 

unstated benefits.126 For example, when 

a ‘‘green’’ claim was qualified with the 

statement ‘‘made with recycled 

materials,’’ 26 percent of respondents 

took away implied claims, a decrease of 

26 percentage points. Similarly, when a 

‘‘green’’ claim was qualified with the 

statement ‘‘made with renewable 

energy,’’ 29 percent of respondents took 

away implied claims, a decrease of 22 

percentage points. 

Second, the survey results indicate 

that the qualification of a general claim 

reduces consumer misperception of a 

product’s overall environmental impact. 

While 27 percent of respondents stated 

that a product advertised with an 

unqualified ‘‘green’’ or ‘‘eco-friendly’’ 

claim had no environmental impact, 

only 16 percent of respondents viewing 

a qualified ‘‘green’’ claim, and 17 

percent of those viewing a qualified 

‘‘eco-friendly’’ claim, made the same 

inference. 

Although the percentage of 

respondents believing that a product 

had specific, unstated benefits and had 

no negative impact significantly 

decreased, some respondents still saw 

implied claims. Specifically, 31 percent 

of respondents saw implied claims, and 

17 percent believed a product had no 

negative impact. To determine the 

extent to which the general 

environmental claim (e.g., ‘‘green,’’ ‘‘ecofriendly’’) contributed to these 

continuing perceptions, the Commission 

compared qualified-general claims to 

specific-attribute claims alone (e.g., 

‘‘made with recycled materials’’). 

Respondents viewing qualified-general 

claims were only eight percent more 

likely to see implied claims than those 

viewing the specific-attribute only 

claims.127 Moreover, respondents 

viewing qualified-general claims were 

only approximately six percent more 

likely to state that the product had no 

negative environmental impact than 

those viewing specific-attribute claims 

alone.128 Thus, when qualified, the use 

of a general green claim did not appear 

to significantly contribute to consumers’ 

propensity to see implied claims or to 

believe a product had no negative 

environmental impact. 

The results, therefore, suggest that 

qualifying a general environmental 

claim can focus consumers on the 

specific advertised benefit and 

significantly reduce misperceptions 

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63564 Federal Register / Vol. 75, No. 199 / Friday, October 15, 2010 / Proposed Rules 

129 In determining if reasonable consumers are 

likely to take an implied claim, the Commission 

looks at the net impression created by the 

advertisement as a whole. Deception Policy 

Statement, 103 F.T.C. at 179. Example 2 in the 

current and proposed Guides presents a scenario in 

which the context of the claim creates ‘‘deceptive 

implications.’’ 16 CFR 260.7(a), Example 2. In this 

example, a product wrapper is printed with the 

claim ‘‘environmentally friendly.’’ Text on the 

wrapper explains that the wrapper is 

environmentally friendly because it was ‘‘not 

chlorine bleached, a process that has been shown 

to create harmful substances.’’ Although the 

wrapper was not bleached with chlorine, its 

production releases other harmful substances. Since 

consumers are likely to interpret the 

‘‘environmentally friendly’’ claim, in combination 

with the textual explanation, to mean that no 

significant harmful substances are currently 

released into the environment, the 

‘‘environmentally friendly’’ claim would be 

deceptive. 

130 16 CFR 260.7(a), Example 5. 

131 Id. FTC staff’s brochure for businesses, 

‘‘Complying with the Environmental Marketing 

Guides,’’ (‘‘FTC Staff’s Business Brochure’’) 

reiterates this guidance and states that third-party 

certification does not insulate an advertiser from 

Commission scrutiny or eliminate an advertiser’s 

obligation to ensure that it has substantiation for the 

claims communicated by the certification. In 

addition, the FTC Staff’s Business Brochure advises 

that if a seal of approval ‘‘implies that a third party 

has certified the product, the certifying party must 

be truly independent from the advertiser and must 

have professional expertise in the area that is being 

certified.’’ FTC Staff’s Business Brochure, 

Complying with the Environmental Marketing 

Guides at 6, available at (http://www.ftc.gov/bcp/ 

edu/pubs/business/energy/bus42.pdf). 

132 See, e.g., Weyerhaeuser, Comment 534743- 

00033 at 2 (‘‘The emergence of environmental seals 

and third-party certifications is one of the most 

important trends the FTC identified as posing 

potential problems for consumers.’’); AF&PA, 

Comment 534743-00031 at 2; David Mallen, 

National Advertising Division, CBBB (‘‘NAD’’), 

Green Packaging Workshop Tr. at 46; USGBC, 

Comment 534743-00027 at 3. 

133 See, e.g., USGBC, Comment 536013-00029 at 

3-4 (noting that rating systems provide a consistent 

and quantifiable definition of ‘‘green building’’ for 

consumers and an expert, third-party assurance that 

technical claims are true); Clorox, Comment 

534743-00017 at 1. 

134 Green Seal, Green Packaging Workshop 

Presentation at (http://www.ftc.gov/bcp/workshops/ 

packaging/presentations/baldwin.pdf). 

135 Weyerhaeuser, Comment 534743-00033 at 2; 

see also Clorox, Comment 534743-00017 at 1; 

Formaldehyde Council, Comment 533431-00047 at 

6. 

about negative environmental impact. 

Based on these findings, the 

Commission proposes to emphasize the 

current Guides’ advice on qualifying 

general environmental benefit claims. 

The proposed, revised section states that 

marketers must use clear and prominent 

qualifying language to convey to 

consumers that a general environmental 

claim refers only to a specific and 

limited environmental benefit. The 

section also cautions marketers that 

explanations of specific attributes, even 

when true and substantiated, will not 

adequately qualify a general 

environmental marketing claim if the 

advertisement’s context implies other 

deceptive claims. Therefore, the 

proposed Guides remind marketers they 

should ensure that the advertising’s 

context creates no deceptive 

implications. 

Marketers also should use caution 

with qualifications to ensure that they 

are not making additional claims they 

cannot substantiate. The Commission’s 

study demonstrates that even some 

specific-attribute claims caused 

consumers to believe the advertised 

product had other, unstated 

environmental attributes. For example, 

30 percent of respondents viewing a 

‘‘made with renewable materials’’ claim 

believed the advertised product had 

environmental attributes not expressly 

mentioned in the claims. Therefore, 

marketers must substantiate additional 

claims conveyed by the qualification 

itself. 

Determining whether a general 

environmental claim is adequately 

qualified depends heavily on the claim’s 

context.129 To provide additional 

guidance on this point, the Commission 

proposes adding a new example to the 

Guides. In proposed Example 3, the 

marketer’s claim that its packaging is 

now ‘‘Greener than our previous 

packaging’’ is likely deceptive even 

though the marketer reduced the weight 

of its packaging, compared to previous 

packaging, by 15 percent. The example 

notes that consumers likely interpret 

‘‘Greener’’ in this context to mean that 

other significant environmental aspects 

of the packaging have been improved. 

Proposed Example 3 suggests that the 

marketer qualify the claim by clearly 

stating that it reduced the weight of its 

packaging, compared to previous 

packaging, by 15 percent. If the 

advertisement’s context does not imply 

other deceptive claims, this claim likely 

would not be deceptive. 

The Commission is concerned that a 

general environmental benefit claim, in 

combination with a particular attribute, 

may imply that the particular attribute 

provides the product with a net 

environmental benefit. If a particular 

attribute represents an environmental 

improvement in one area, but causes a 

negative impact elsewhere that makes 

the product less environmentally 

beneficial than the product otherwise 

would be, consumers may be misled. 

For example, a marketer that claims its 

product is ‘‘Green – Now contains 70 

percent recycled content,’’ needs to 

import more materials from a distant 

source, resulting in increased energy use 

which more than offsets the 

environmental benefit achieved by 

using recycled content. If consumers 

interpret the claim ‘‘Green – Now 

contains 70 percent recycled content’’ to 

mean that the product has a net 

environmental benefit, the claim would 

be deceptive. The Commission, 

therefore, requests comment on 

consumer interpretation of qualifiedgeneral environmental benefit claims 

and on whether to include guidance 

concerning this issue. 

The following part on certifications 

and seals further discusses the issue of 

broad, unqualified green claims and 

includes additional examples of 

effective qualifications. 

B. Certifications and Seals of Approval 

1. The Current Guides 

Currently, the Guides do not contain 

a section devoted to certifications and 

seals of approval. However, one 

example notes that an environmental 

seal of approval (‘‘seal’’) may imply that 

a product is environmentally superior to 

other products. Specifically, Example 5 

in the general environmental benefit 

claims section provides: ‘‘A product 

label contains an environmental seal, 

either in the form of a globe icon, or a 

globe icon with only the text ‘Earth 

Smart’ around it. Either label is likely to 

convey to consumers that the product is 

environmentally superior to other 

products. If the manufacturer cannot 

substantiate this broad claim, the claim 

would be deceptive.’’130 Accordingly, 

the Guides instruct marketers who use 

environmental seals to accompany such 

claims with clear and prominent 

language limiting any environmental 

superiority representation to the 

particular product attribute or attributes 

it can substantiate.131

2. Comments 

Several commenters and panelists 

identified the use of third-party 

certifications as a significant green 

marketing trend132 and highlighted the 

benefits of such certifications to 

businesses and consumers.133 For 

example, Green Seal, Inc. asserted that 

third-party certification provides 

marketers with independent and 

credible substantiation.134

Weyerhaeuser stated that third-party 

certifications are ‘‘useful in technical 

areas, where consumers face difficulty 

in understanding or directly measuring 

benefits.’’135 Similarly, the U.S. Green 

Building Council observed that ‘‘when 

properly administered by certifying 

organizations truly independent of the 

product manufacturer and appropriately 

represented by marketers, . . . third-party 

certification takes the guesswork out of 

consumer purchases, providing an 

independent and expert assessment of 

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136 USGBC, Comment 534753-00027 at 3. 

137 Cone LLC, Comment 534743-00007 at 9; see 

also Tandus, Comment 536013-00037 at 1 

(‘‘[I]ndependent, third party verification and 

certification provides extra credibility and 

assurance that the manufacturers’ claims are 

truthful and accurate.’’). 

138 NAD, Green Packaging Workshop Tr. at 46. 

139 CSPA, Comment 533431-00049 at 2-3; P&G, 

Comment 533431-00070 at 2; SDA, Comment 

536013-00018 at 2; USGBC, Comment 536013- 

00029 at 6; Saint-Gobain, Comment 533431-00037 

at 7-8. 

140 See, e.g., ACC, Comment 536013-00030 at 3- 

4; CSPA, Comment 533431-00049 at 2-3; Johns 

Manville, Comment 536013-00034 at 6; Michelle 

Moore, USGBC, Green Building and Textiles 

Workshop Tr. at 197; SBIC, Green Building and 

Textiles Workshop Tr. at 224; SPI, Comment 

533431-00036 at 11; USGBC, Comment 536013- 

00029 at 3. 

141 P&G, Comment 533431-00070 at 2; see also 

USGBC, Comment 536013-00029 at 6 (stating that 

marketers should specify the attributes to which a 

seal refers in order to help consumers interpret their 

meaning); CSPA, Comment 533431-00049 at 3; 

Saint-Gobain, Comment 533431-00037 at 3. 

142 P&G, Comment 533431-00070 at 2; see 16 CFR 

260.7(a), Example 5. 

143 Greenpeace USA, Comment 536013-00020 at 

3. 

144 See, e.g., GMA, Comment 533431-00045 at 4; 

SPI, Comment 533431-00036 at 8-9. 

145 See, e.g., ACC, Comment 536013-00030 at 1; 

Johns Manville, Comment 536013-00034 at 6; 

USGBC, Comment 536013-00029 at 4-5. 

146 ACC, Comment 536013-00030 at 3 (noting that 

marketers should distinguish seals based on 

voluntary consensus standards from other 

certifications and that the FTC should aid 

consumers in distinguishing among certification 

programs, including those that use life cycle 

assessment as the basis for certification); Frank 

Hurd, CRI (‘‘CRI’’), Green Building and Textile 

Workshop Tr. at 153; Johns Manville, Comment 

536013-00034 at 7-8; NAIMA, Comment 536013- 

00017 at 9; USGBC, Comment 536013-00029 at 2- 

3. 

147 CRS, Comment 534743-00009 at 4-5; see also 

Gensler, Green Building and Textiles Workshop Tr. 

at 109 (highlighting the differences between selfcertification; certification where there is a 

relationship between the certifying organization 

and marketer – e.g., marketer is a member of the 

certifying trade association; and certification by an 

independent third-party). 

148 Skye Con, Comment 536013-00036 at 3. 

149 SBIC, Green Building and Textile Workshop 

Tr. at 224; see also Gensler, Green Building and 

Textile Workshop Tr. at 135 (stating that marketers 

need to make sure that graphics do not imply more 

than is actually being delivered); OMI, Comment 

536013-00022 at 3 (noting that advertisements must 

clearly state whether a logo refers to membership 

only or a ‘‘verifiable claim of certification’’). 

150 ACC, Comment 536013-00030 at 4; NAIMA, 

Comment 536013-00017 at 8. 

151 USGBC, Comment 534743-00027 at 4; see also 

SDA, Comment 534743-00028 at 3. 

152 USGBC, Comment 534743-00027 at 4. 

153 ATA, Comment 533431-00041 at 8 (stating 

that requiring third-party certification to 

substantiate claims ‘‘would impose unnecessary and 

impractical burdens on advertisers’’ and that those 

claims may already be adequately substantiated 

under the FTC Act); AF&PA, Comment 533431- 

00019 at 2; Sappi Fine Paper North America 

(‘‘Sappi’’), Comment 534743-00023 at 2; Skye Con, 

Comment 536013-00036 at 3; The Vinyl Institute 

(‘‘Vinyl Institute’’), Comment 533431-00046 at 4. But 

see Healey, Comment 533431-00048 at 7 (stating 

that FTC could prohibit broad claims unless they 

are certified by an independent party); Patagonia, 

Inc. (‘‘Patagonia’’), Comment 536013-00011 at 1 

(noting that marketers making ‘‘safer’’ chemical use 

or water/energy conservation claims in textiles 

should substantiate claims with third-party 

certifications). 

154 See, e.g., ACC, Comment 536013-00030 at 3- 

4; AF&PA, Comment 536013-00021 at 2-3; AZS 

Continued 

technical product claims that may be 

difficult for consumers to interpret or 

verify on their own.’’136 Cone LLC 

affirmed that consumers rely on 

certifications when evaluating 

environmental claims. Its opinion 

survey found that 80 percent of 

respondents believed that certification 

by third-party organizations is 

‘‘important in providing oversight to 

ensure environmental messaging by 

companies is accurate.’’137

One commenter, however, noted that 

consumers typically cannot verify thirdparty certifications. Therefore, there is a 

‘‘heightened degree of trust involved, 

and there is a heightened degree of 

credibility that is at stake.’’138 Other 

commenters cautioned that seals and 

logos may communicate a general claim 

of environmental preferability with no 

means for the consumer to determine 

which environmental benefits form the 

basis for the claim.139

Notwithstanding the benefits of thirdparty certifications, several panelists 

and commenters highlighted areas of 

potential consumer confusion and made 

various suggestions regarding how to 

address that confusion. The following 

discusses commenters’ suggestions 

addressing the use of certifications and 

seals in marketing and when third-party 

certifications adequately substantiate 

environmental claims. 

a. Use of Certifications and Seals in 

Marketing 

Several panelists and commenters 

suggested that the FTC provide 

additional guidance on when the 

display of certifications and seals is 

likely to mislead consumers.140 For 

example, one commenter asserted that 

seals of approval and ‘‘eco-labels’’ ‘‘that 

communicate a general 

‘environmentally friendly’ message to 

consumers should be treated as 

environmental claims within the scope 

of the guides and be subject to 

applicable principles and criteria.’’141

This commenter suggested that the FTC 

more prominently feature its advice on 

the need to qualify certain types of seals 

that could connote general 

environmental benefits.142 Another 

commenter suggested that marketers 

generally should not use ‘‘vague, 

undefined’’ environmental terms but 

should be able to incorporate such terms 

into certifications, as long as the 

marketer makes the method and terms 

of the certification publicly available 

and easily accessible.143

Several commenters recommended 

that the Guides include examples 

illustrating ways in which marketers 

could effectively qualify third-party 

certifications and seals of approval.144

In the building context, for example, 

commenters suggested the Guides 

include examples illustrating how 

marketers can qualify certifications to 

distinguish between building design 

features and performance and to clarify 

whether a certification applies to a 

product or whole building.145

Commenters also recommended that 

the Guides address how marketers can 

avoid misleading consumers about the 

certifier’s independence.146 For 

example, one commenter opined that 

self-certifications ‘‘can be misleading to 

consumers unless the company 

expressly discloses that the certification 

has not been conducted by an 

independent third-party.’’147 Another 

asserted that the Guides should address 

the financial relationship between the 

certifying organization and the company 

being certified.148

In addition, commenters addressed 

how marketers can avoid misleading 

consumers about the basis for a 

certification. For example, because 

consumers may confuse a logo that 

simply indicates membership in an 

organization with one that certifies an 

aspect of a product’s environmental 

performance, a commenter 

recommended that marketers 

distinguish between the two.149 Other 

commenters suggested that the FTC 

provide guidance to help avoid 

confusion about certifications that 

falsely appear to be bestowed by a 

government agency.150 Finally, 

commenters observed that certification 

programs may address some, but not all, 

aspects of a product.151 Therefore, they 

recommended guidance cautioning 

marketers not to indicate approval of an 

environmental attribute that the certifier 

did not evaluate.152

b. Third-Party Certifications as 

Substantiation 

Commenters also advised the FTC to 

address the use of third-party 

certifications to substantiate claims. 

Several urged the Commission not to 

require third-party certification as 

substantiation for an environmental 

claim.153 Others recommended that the 

FTC revise the Guides to set forth the 

parameters of a third-party certification 

that would constitute adequate 

substantiation.154 Some commenters 

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63566 Federal Register / Vol. 75, No. 199 / Friday, October 15, 2010 / Proposed Rules 

Consulting, Inc., Comment 536013-00024 at 1-2; 

Healey, Comment 533431-00048 at 2; Johns 

Manville, Comment 536013-00034 at 6; SDA, 

Comment 536013-00018 at 2; Skye Con, Comment 

536013-00036 at 3; SPI, Comment 533431-00036 at 

12; USGBC, Comment 536013-00029 at 4; Vinyl 

Institute, Comment 536013-00019 at 2-3; 

Weyerhaeuser, Comment 536013-00035 at 2. 

155 See, e.g., GMA, Comment 533431-00045 at 6; 

see also Todd Copeland, Patagonia, Inc. 

(‘‘Patagonia’’), Green Building and Textiles 

Workshop Tr. at 81-82; ECOnscious, Comment 

536013-00023 at 1-2; Grace Gershuny, Organic 

Trade Association (‘‘OTA’’), Green Building and 

Textiles Workshop Tr. at 62; Oeko-Tex Certification 

Body (USA) (‘‘Oeko-Tex’’), Comment 536013-00013 

at 4; Skye Con, Comment 536013-00036 at 3. 

156 16 CFR Part 255. 

157 GMA, Comment 533431-00045 at 6; Johns 

Manville, Comment 536013-00034 at 6; Cassie 

Phillips, Weyerhaeuser (‘‘Weyerhaeuser’’), Green 

Packaging Workshop Tr. at 220-221; Weyerhaeuser, 

Comment 534743-00033 at 2. 

158 AF&PA, Comment 534743-00031 at 2; see also 

CRS, Comment 534743-00009 at 4 (stating that 

because consumers assume certifications have been 

conducted by independent third-parties, companies 

should expressly disclose when they have not); 

AF&PA, Comment 534743-00031 at 2; Green Seal, 

Green Packaging Workshop Tr. at 199-200; Healey, 

Comment 533431-00048 at 8. 

159 USGBC, Green Building and Textile 

Workshop Tr. at 134,160-61; USGBC, Comment 

536013-00029 at 5; see also Oeko-Tex, Comment 

536013-00013 at 6. 

160 Vinyl Institute, Comment 536013-00019 at 2; 

see also ECM Biofilms, Inc. (‘‘ECM Biofilms’’), 

Comment 534743-00025 at 2 (commenting that to be 

an active member of ASTM and to author standards 

takes resources that are not available to many 

organizations, and ‘‘[a]s a result, standards are 

written to be beneficial to certain organizations’’). 

161 See, e.g., Builders Association of South 

Florida, Comment 536013-00010 at 1; Stephen 

Richard Sides, National Paint and Coatings 

Association, Inc. (‘‘NPCA’’), Green Building and 

Textiles Workshop Tr. at 128. 

162 See John Girman, EPA, Green Building and 

Textiles Workshop Tr. at 200-201; Carlos Martin, 

National Association of Home Builders (‘‘NAHB’’), 

Green Building and Textiles Workshop Tr. at 198- 

200. 

163 This proposed guidance can be found in 16 

CFR 260.6. 

164 16 CFR Part 255. The Endorsement Guides 

provide guidance on the non-deceptive use of 

endorsements in marketing and outline the 

parameters of endorsements that would be 

considered adequate substantiation for marketing 

claims. 

165 The Endorsement Guides define an 

endorsement as ‘‘any advertising message . . . that 

consumers are likely to believe reflects the 

opinions, beliefs, findings, or experiences of a party 

other than the sponsoring advertiser, even if the 

views expressed by that party are identical to those 

of the sponsoring advertiser.’’ 16 CFR 255.0. 

166 Id. 

167 16 CFR 255.1. This section provides, among 

other things, that ‘‘[e]ndorsements must reflect the 

honest opinions, findings, beliefs, or experience of 

the endorser,’’ and that the endorsement ‘‘may not 

convey any express or implied representation that 

would be deceptive if made directly by the 

advertiser.’’ 

168 16 CFR 255.3. An expert endorser is someone 

who, as a result of experience, study, or training, 

possesses knowledge of a particular subject that is 

superior to that generally acquired by ordinary 

individuals. 16 CFR 255.0(e). An expert endorser’s 

qualification must, in fact, give him or her the 

expertise that he or she is represented as possessing 

with respect to the endorsement. 16 CFR 255.3(a). 

An expert endorsement must be supported by an 

actual exercise of expertise, and the expert’s 

evaluation of the product must have been at least 

as extensive as someone with the same degree of 

expertise would normally need to conduct in order 

to support the conclusions presented. 16 CFR 

255.3(b). 

169 16 CFR 255.5. When there is a connection 

between the endorser and the seller of the 

advertised product that might materially affect the 

weight or credibility of the endorsement (i.e., the 

connection is not reasonably expected by the 

audience), such connection must be fully disclosed. 

16 CFR 255.5. 

170 16 CFR 255.4. 

and panelists stated that marketers 

relying on a third-party certification as 

substantiation must be able to show that 

the certifying party is truly independent 

from the advertiser and that the 

certifying party has professional 

expertise in the area that is being 

certified.155 Thus, for example, some 

commenters proposed that the Guides 

reiterate, or at least cross-reference, the 

principles outlined in the Guides 

Concerning the Use of Endorsements 

and Testimonials in Advertising 

(‘‘Endorsement Guides’’),156 including 

that endorsements may not contain 

factual representations that would be 

deceptive or could not be substantiated 

if made directly by the advertiser157 and 

that marketers should not rely on 

endorsements by entities that have a 

monetary or other relationship with the 

marketer.158

Panelists and commenters also 

suggested the Guides provide that thirdparty certification programs be 

developed through an open, transparent 

and balanced process, such as programs 

accredited through the American 

National Standards Institute 

(‘‘ANSI’’).159 Other commenters, 

however, observed that achieving 

openness and balance is difficult 

because not all parties may be given a 

voice in the proceedings, and those 

making the decisions on the standard 

may possess ideological views adverse 

to certain interests.160

In lieu of delineating general 

parameters, some panelists and 

commenters urged the FTC to establish 

particular standards that, for example, 

would establish a certification 

system.161 Others, however, asserted 

this should not be the FTC’s role.162

3. Analysis and Guidance 

Marketers across industry sectors 

increasingly use certifications and seals 

of approval to communicate 

environmental claims. These 

certifications vary from seals of 

approval issued by third-parties to logos 

developed internally pursuant to 

company-specific standards. Thirdparty certification programs include 

certification for single attributes (e.g., 

‘‘recycled content’’) and multiple 

attributes, which may incorporate 

environmental considerations 

throughout the life cycle of the product. 

Given the widespread use of 

certifications and seals and their 

potential for consumer confusion, the 

Commission proposes providing 

additional guidance, specifically in a 

new Guide section devoted to this 

subject.163 This section emphasizes that 

third-party certifications and seals 

constitute endorsements covered by the 

Endorsement Guides.164 This section 

also states that the use of a certification 

or seal by itself may imply a general 

environmental benefit claim. Because, 

as discussed above, such claims are so 

difficult to substantiate, this section 

further advises marketers not to use 

unqualified seals or certifications. 

Marketers should accompany seals or 

certifications with clear and prominent 

language limiting the general 

environmental benefit claim to the 

particular attribute or attributes for 

which they have substantiation. Finally, 

the section addresses the use of 

certifications as substantiation. 

a. Certifications and Seals as 

Endorsements 

The proposed new section advises 

marketers that it is deceptive to 

misrepresent, directly or by implication, 

that a product, package, or service has 

been endorsed or certified by an 

independent, third-party organization. 

The proposed section states that thirdparty certifications are endorsements,165

which should meet the criteria for 

endorsements set forth in the FTC’s 

Endorsement Guides. In particular, the 

proposed section advises marketers to 

review the following Endorsement 

Guides sections: Definitions,166 General 

Considerations,167 Expert 

Endorsements,168 Disclosure of Material 

Connections,169 and Endorsements by 

Organizations.170

Rather than simply repeating the 

Endorsement Guides’ text, the proposed 

Green Guides section provides several 

examples of how the Endorsement 

Guides apply in the context of 

environmental claims. Proposed 

Example 1 addresses the use of a seal of 

approval created by the marketer itself, 

rather than bestowed by a third-party. In 

this example, the advertisement implies 

that an independent third-party certifier 

with appropriate expertise awarded the 

seal. The example notes that this 

unqualified claim would be deceptive 

because consumers would assume that 

an independent, third-party certifier 

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171 See 16 CFR 255.0 (defining ‘‘endorsement’’ as 

a message which ‘‘consumers are likely to believe 

reflects the opinion . . . of a party other than the 

sponsoring advertiser’’) (emphasis added); 16 CFR 

255.5 (stating that when there is a connection 

between the endorser and the seller of the 

advertised product that might materially affect the 

weight or credibility of the endorsement, such 

connection must be fully disclosed); see also Trade 

Advertising Assocs., Inc., 65 F.T.C. 650 (1964) 

(finding a newspaper’s statement about ‘‘awards’’ it 

won, which were, in fact, created by the publisher, 

deceptive because consumers were misled into 

believing that an objective third-party had 

evaluated the newspaper); Revco D.S., Inc., 67 

F.T.C. 1158 (1965) (finding an advertiser’s creation 

and use of a ‘‘Consumer Protective Institute’’ seal on 

products was deceptive because the seal created the 

false impression that ‘‘an independent and 

disinterested organization . . . had approved these 

products’’). 

172 16 CFR 255.5. 

173 16 CFR 260.7(a). 

174 Id. 

175 The Commission’s study did not test 

consumer interpretation of seals of approval or 

certifications. Given the wide diversity of seal and 

certification designs, it would have been difficult to 

draw general consumer perception conclusions 

from testing a particular seal design. No commenter 

submitted relevant consumer perception evidence. 

176 This example is now Example 5 in the 

proposed new Section 260.6. The example now 

states that the environmental seal is likely to 

convey that the product has far-reaching 

environmental benefits and may also convey that it 

causes no negative environmental impact. 

177 It is possible for this qualifying language to 

be part of the certification or seal itself. For 

example, the name of a seal may constitute all or 

part of the qualification. See proposed Examples 2 

and 6. 

evaluated the product.171 The marketer 

could avoid deception by using clear 

and prominent qualifying language to 

alert consumers that it created the 

certifying program. 

Proposed Example 2 involves a 

marketer who displays a seal of 

approval bestowed by a trade 

association in which the marketer is a 

member. In this case, the trade 

association evaluated the environmental 

attributes of the marketer’s product. 

Because the seal of approval implies 

that a third-party evaluated and certified 

the product, consumers likely expect 

that the endorsing party is truly 

independent from the marketer. In this 

case, however, the certifier is not a truly 

independent entity because the 

marketer pays membership dues to the 

association. Under Section 5 of the FTC 

Act, as explained by the Endorsement 

Guides, marketers are required to 

disclose a ‘‘material connection,’’ or a 

‘‘connection between the endorser and 

the seller of the advertised product that 

might materially affect the weight or 

credibility of the endorsement.’’172

Accordingly, this example makes clear 

that the marketer’s failure to disclose its 

material connection with the endorsing 

association, i.e., that it is a dues-paying 

member of the endorsing association, is 

deceptive. 

Proposed Example 3 similarly 

illustrates a failure to disclose a material 

connection and shows how the name of 

a certifying organization can be 

misleading. In this example, the 

marketer is a member of an industry 

trade association, the American Institute 

of Degradable Materials, that evaluates 

the biodegradability of its members’ 

products. The association’s name may 

lead consumers to believe that the 

association is an independent certifying 

organization. Consumers likely place 

different weight on a certification from 

an industry association than from an 

independent, third-party. Because this 

advertisement does not disclose that the 

certifier is an industry trade association, 

the advertisement is likely to be 

deceptive. As shown in the example, the 

marketer could avoid this deception by 

disclosing that the American Institute of 

Degradable Materials is an industry 

trade association. 

Unlike the examples above, proposed 

Example 4 addresses a situation in 

which a marketer touts its relationship 

with a third party that has neither 

evaluated nor endorsed the 

environmental attributes of its products. 

In this example, the marketer displays a 

seal to show that it is a member of the 

‘‘U.S. EcoFriendly Building 

Association.’’ The proposed example 

makes clear that, in this circumstance, 

displaying the organization’s seal may 

cause consumers to mistakenly believe 

that the organization has evaluated and 

endorsed the product. In this example, 

the marketer could avoid deception by 

stating that the seal refers to the 

company’s membership only and that 

the association did not evaluate the 

product’s environmental attributes. 

b. Certifications and Seals as General 

Environmental Benefit Claims 

The current Green Guides state that 

unqualified certifications and seals of 

approval likely convey general 

environmental benefit claims. 

Specifically, Example 5 of the current 

general environmental benefit section 

states that a marketer using an 

unqualified seal of approval should be 

able to substantiate the broad claim that 

the product is environmentally superior 

to others.173 If the marketer cannot, it 

should accompany the seal with ‘‘clear 

and prominent qualifying language 

limiting the environmental superiority 

representation to the particular product 

attribute or attributes for which they 

could be substantiated ....’’174 No 

commenters challenged this approach. 

Therefore, the Commission continues to 

believe that consumers likely interpret 

unqualified seals and certifications 

similarly to general environmental 

benefit claims.175

As discussed in Part V.A, above, the 

Commission’s consumer perception 

study shows that broad, general 

environmental benefit claims suggest 

that a product has specific, unstated 

green attributes, such as recyclability 

and biodegradability, and that the 

product has no negative environmental 

impact. The study results also reinforce 

the Guides’ advice that marketers may 

be able to avoid making deceptive 

general environmental claims by 

qualifying those claims. 

The Commission proposes 

transferring a modified Example 5 into 

the new certification section176 and 

moving the guidance from this example 

into this section. Specifically, the 

guidance cautions marketers that 

unqualified seals of approval and 

certifications likely constitute general 

environmental benefit claims and, 

because marketers are unlikely to be 

able to substantiate such claims, they 

should not use unqualified certifications 

or seals of approval. The guidance 

further states that marketers should 

qualify seals of approval or 

certifications to prevent deception. 

Qualifying language should be clear and 

prominent and should convey that the 

seal of approval or certification applies 

only to a specific and limited benefit.177

The Commission will consider whether 

the qualifying language successfully 

limits the general environmental benefit 

claim on a case-by-case basis. 

In contrast, proposed Example 6 

illustrates how a marketer can properly 

use a third-party certification for a 

single-attribute claim, e.g., ‘‘chlorinefree.’’ In this example, the name of the 

certifier (‘‘No Chlorine Products 

Association’’) conveys that the 

certification applies only to one 

environmental attribute, rather than to 

the overall environmental benefit of the 

product. 

c. Third-Party Certifications as 

Substantiation 

Third-party certification may 

constitute adequate substantiation. 

Therefore, the following describes the 

Commission’s proposed guidance on the 

use of certifications to substantiate 

environmental claims, as well as the 

topics the Commission declines to 

address. 

A marketer may rely on a third-party 

certification as all or part of its 

substantiation if the marketer ensures 

that the certification constitutes 

competent and reliable scientific 

evidence to support its claims. In other 

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178 16 CFR 260.5. 

179 See Substantiation Policy Statement, 104 FTC 

at 840 (explaining that what constitutes a 

reasonable basis for claims depends on a number 

of factors); see also FTC, Dietary Supplements: An 

Advertising Guide for Industry (2001), available at 

(http://www.ftc.gov/bcp/edu/pubs/business/adv/ 

bus09.pdf) (stating that ‘‘[t]he FTC will consider all 

forms of competent and reliable scientific research 

when evaluating substantiation’’). 

180 16 CFR 260.7(b). 

181 Id., Example 1. The FTC Staff’s Business 

Brochure provides additional guidance, noting that 

a ‘‘reasonably short period of time’’ depends on 

where the product is disposed. The brochure 

explains that in landfills, where most trash is taken, 

materials degrade very slowly and certain materials 

take decades to decompose. FTC Staff’s Business 

Brochure at 7. 

182 See, e.g., Dyna-E Int’l, Inc., et al., FTC Docket 

No. D-9336 (Dec. 15, 2009) (viscose towels); Kmart 

Corp., FTC Docket No. C-4263 (July 15, 2009) (paper 

plates); Tender Corp., FTC Docket No. C-4261 (July 

13, 2009) (moist wipes and plastic packaging). 

183 See, e.g., Biodegradable Products Institute 

(‘‘BPI’’), Comment 533431-00087 at 2 (supporting 

guidance, but proposing changes); EPA-EPPP, 

Comment 533431-00038 at 7; EPA-SPN, Comment 

536013-00062 at 12; P&G, Comment 533431-00070 

at 2. 

184 SDA, Comment 533431-00020 at 3; see also 

ACC, Comment 533431-00023 at 12. 

185 See CSPA, Comment 533431-00049 at 3 (‘‘Very 

little, if any, degradationoccurs when the product 

is incinerated or disposed of in a landfill.’’); 

Georgia-Pacific, Comment 533431-00007 at 9 

(‘‘[M]odern landfills are in fact entombment 

facilities where air, light and water are excluded by 

strict design. In those conditions, degradability time 

far exceeds ‘the reasonable [sic] short period of 

time’ of the Guides.’’); Tracy Artley, Comment 

534743-00019 at 1; EHS, Comment 534743-00011 at 

1; EPI, Comment 533431-00063 at 5; NAD, 

Comment 534743-00029 at 7; Tandus, Comment 

533431-00021 at 1. 

186 P&G, Comment 533431-00070 at 2. 

187 No commenters specifically addressed 

disposal of liquid waste into wastewater treatment 

systems or aquatic environments. 

188 BPI, Comment 533431-00087 at 3; see also 

GPI, Comment 534743-00026 at 7 (‘‘[I]t is important 

that the Commission provide additional 

clarification regarding what constitutes a 

‘reasonably short period of time.’’’); Graphic Arts 

Coalition, Comment 533431-00060 at 1 (‘‘The 

business community is now asking for a clearer 

definition of ‘short period of time.’’’). 

words, a marketer relying on a 

certification as substantiation must 

ensure that the certification supports 

each of the marketer’s claims with tests, 

analyses, research, or studies that have 

been conducted and evaluated in an 

objective manner by qualified persons 

and are generally accepted in the 

profession to yield accurate and reliable 

results.178 This evidence should be 

sufficient in quality and quantity based 

on standards generally accepted in the 

relevant scientific fields, when 

considered in light of the entire body of 

relevant and reliable scientific evidence, 

to substantiate that each of the claims is 

true. It is the marketer’s responsibility to 

ensure that the certification adequately 

substantiates its claims. The proposed 

Guides, therefore, remind marketers that 

simply possessing a third-party 

certification does not eliminate their 

obligation to ensure that they have 

substantiation for their claims, 

including all claims communicated by 

the certification. 

The Commission does not propose 

incorporating four suggestions raised by 

commenters. First, the Commission does 

not propose requiring marketers to 

obtain a third-party certification to 

substantiate their claims. Rather, 

Section 5 of the FTC Act gives marketers 

the flexibility to substantiate their 

claims with any competent and reliable 

scientific evidence.179 Because the 

Guides interpret Section 5 as applied to 

environmental claims, requiring a thirdparty certification to substantiate claims 

is beyond the Guides’ purview. 

Second, the Commission does not 

propose establishing a particular 

certification system. The Green Guides 

do not establish environmental 

performance standards or identify 

environmentally preferable industry 

practices. Instead, the Guides’ purpose 

is to provide advice regarding consumer 

interpretation of environmental 

marketing claims so that marketers can 

avoid making false or misleading 

claims. 

Third, the Commission declines to 

propose guidance on the development 

of third-party certification programs. 

Experts in the field are in the best 

position in a dynamic marketplace to 

determine how to establish certification 

programs to assess the environmental 

attributes of products. There may be 

multiple ways to develop standards that 

would constitute adequate 

substantiation, i.e., substantiation that 

constitutes competent and reliable 

scientific evidence. Accordingly, the 

Commission will continue to evaluate 

the adequacy of a third-party 

certification as substantiation on a caseby-case basis. 

Finally, the proposed, revised Guides 

do not provide that certifiers make their 

standards or any other criteria used to 

support their certifications public. 

Although Section 5 requires that 

marketers possess substantiation for 

their claims prior to making them, it 

does not require that marketers make 

their substantiation publicly available. 

C. Degradable Claims 

1. The Current Guides 

The Guides state that an unqualified 

degradable claim should be 

substantiated with 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.180 The 

Guides also provide that degradable 

claims should be qualified to avoid 

consumer deception about: (1) the 

product or package’s ability to degrade 

in the environment where it is 

customarily disposed; and (2) the rate 

and extent of degradation. For example, 

the Guides discuss a trash bag labeled 

‘‘degradable,’’ without qualification. The 

marketer relies on tests showing that the 

bag will degrade in the presence of 

water and oxygen. Because trash bags 

are customarily incinerated or buried in 

landfills that inhibit degradation by 

minimizing moisture and oxygen, the 

marketer lacks substantiation that the 

bags will degrade in a reasonably short 

period of time. Thus, the claim is 

deceptive.181

The Commission has challenged 

degradability claims more than any 

other specific claim addressed by the 

Green Guides.182 These cases were not 

based on products’ inability to degrade 

under any conditions, but rather on 

their inability to degrade in the manner 

consumers expect. 

2. Comments 

Most commenters supported the 

Commission’s degradable claims 

guidance.183 For example, the Soap and 

Detergent Association supported the 

Guides’ provision that ‘‘degradability 

claims should be qualified to the extent 

necessary to avoid consumer deception 

about the product’s ability to degrade in 

the environment where, or in the 

manner in which, it is customarily 

disposed.’’184

Although supporting the current 

guidance, commenters suggested four 

modifications. First, many stressed that 

typical solid waste disposal treatments 

inhibit degradation.185 Procter & Gamble 

summed up these views, stating ‘‘[i]n the 

United States, solid waste is 

predominantly disposed of by 

incineration or in a landfill, where little 

or no degradation occurs.’’186

Consequently, these commenters argued 

that unqualified biodegradable claims 

are inappropriate for items destined for 

landfills and incinerators.187 Second, 

several commenters recommended that 

the Commission provide guidance on 

the ‘‘reasonably short’’ time period for 

complete decomposition. For example, 

the Biodegradable Products Institute 

(‘‘BPI’’) urged that ‘‘[t]he FTC . . . cite a 

specific timeframe for the process.’’188

Third, several commenters suggested 

that the Commission reference technical 

protocols that marketers could follow to 

adequately substantiate degradable 

claims. These commenters did not form 

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189 The following commenters favor some degree 

of reference to technical standards or testing 

protocols: ECM BioFilms, Comment 534743-00011 

at 3 (ASTM D 5526 (plastics under accelerated 

landfill conditions)); EPA-SPN, Comment 536013- 

00062 at 12 (various harmonized tests accessible 

online from the EPA); EPI, Comment 533431-00063 

at 4 (‘‘the applicable [unspecified] ASTM or ISO 

standard’’); Georgia-Pacific, Comment 533431-0007 

at 9-10 (the British Standards Institution’s EN 

14327:2000 (requirements for packaging and 

packaging waste) and ISO 14855:1999 (aerobic 

biodegradability of plastics)); SPI, Comment 

533431-00036 at 8 (‘‘existing [unspecified] ASTM 

standards’’); see also Graphic Arts Coalition, 

Comment 533431-00060 at 1 (‘‘The business 

community . . . oftentimes seeks a specific test 

method to verify the claims. Inclusion in the guides 

of acceptable test methods might be an appropriate 

step.’’); Tandus, Comment 533431-00021 at 1 (‘‘If a 

test method could be specified, it might help 

qualification of such claims.’’). 

190 EPA-SPN, Comment 536013-00062 at 12 

(discussing degradable, biodegradable, oxodegradable, and photodegradable claims). 

191 The Commission has placed this information 

on the public record. 

192 The study did not explore other types of 

degradable claims, such as photodegradable. 

193 See APCO, Biodegradable and Compostable 

Survey Topline at 2. 

194 Id. at 1. 

195 The Commission’s consumer perception study 

did not specifically ask consumers about 

unqualified biodegradable claims. 

196 This proposed guidance can be found in 16 

CFR 260.8. 

197 See 40 CFR Part 258. 

198 EPA, The Consumer’s Handbook for Reducing 

Solid Waste, EPA Pub. 530-K-96-003, at 17 (1996); 

William Rathje and Cullen Murphy, Rubbish! The 

Archaeology of Garbage 112 (2001). 

199 See National Research Council of the National 

Academy of Sciences, Waste Incineration & Public 

Health 37 (2000). 

200 EPA, Municipal Solid Waste Generation, 

Recycling, and Disposal in the United States: Facts 

and Figures for 2008 at 2-3, available at (http:// 

www.epa.gov/waste/nonhaz/municipal/ pubs/ 

msw2008rpt.pdf). 

201 Id. 

202 The comments discussed numerous different 

standards. While no single protocol attracted wide 

support, the standards published by ASTM 

garnered the most mention. 

203 Most trash is disposed in landfills, which 

have varied, highly compressed, heterogeneous 

zones. The moisture, temperature, and contact 

conditions in landfills differ from the laboratory 

protocols. ASTM D 5511, for example, mimics a 

rare disposal environment – a highly controlled 

anaerobic digester, such as may be found on farms 

or in sewage treatment systems – with consistent 

moisture, heat, and exposure to degradation 

catalysts. 

a consensus, however, regarding which 

specific protocol(s) the Commission 

should consider.189 Finally, the EPA’s 

Sustainable Products Network urged 

that the revised Guides address 

emerging ‘‘oxo-degradable’’ claims.190

3. Consumer Perception Evidence 

The Commission solicited from 

commenters evidence of consumer 

understanding of degradable claims. 

Only BPI referenced detailed research 

findings, which arose from a September 

2006 survey conducted by the opinion 

research firm APCO Insight for the 

American Chemistry Council (‘‘APCO 

survey’’). 

FTC staff has subsequently reviewed 

the underlying questionnaire and data 

from the APCO survey.191 Using a 

widely-accepted methodology, the 

survey asked 1,000 Americans about 

unqualified biodegradable and 

compostable claims.192 It found that 60 

percent of consumers believed that a 

biodegradable package will disappear in 

one year or less.193 Additionally, 83 

percent of consumers believed a 

biodegradable item will decompose 

even when disposed in a landfill.194 The 

Commission is unaware of additional 

consumer perception data on degradable 

claims.195

4. Analysis and Guidance 

In light of the comments and the 

APCO survey, as well as our own 

enforcement experience, the 

Commission proposes retaining its 

guidance on degradable claims but 

adding clarity regarding degradable 

claims for solid waste.196 Given the lack 

of information on the record about 

liquid waste, the Commission seeks 

comment on whether it should provide 

additional specificity concerning claims 

for such materials. The Commission 

declines to advise marketers that a 

particular test constitutes adequate 

substantiation for degradability claims. 

Finally, the Commission proposes 

addressing oxo-degradable claims in the 

Guides. 

a. Solid Waste – Time Period for 

Degradation 

The Commission proposes revising 

the Guides to clarify that unqualified 

degradable claims are deceptive for 

products or packages destined for 

landfills, incinerators, or recycling 

facilities. Federal environmental 

regulations require landfills to minimize 

interaction with water, oxygen, and 

light.197 Absent a robust supply of these 

elements, decomposition is severely 

retarded.198 Moreover, incinerators 

combust materials at extreme 

temperatures, thereby completely 

preventing decomposition.199 Together, 

landfills and incinerators received 66 

percent of municipal solid waste in 

2008.200 In addition, in 2008, another 24 

percent of consumers’ trash went to 

recycling facilities to be processed for 

reuse.201 Thus, these materials also will 

not decompose. Accordingly, 

unqualified degradable claims for a vast 

majority of disposable solid items are 

likely to be deceptive because the 

customary methods of disposal do not 

present conditions for decomposition in 

a reasonably short period of time. 

For those solid waste products that 

are not disposed of in these traditional 

ways, some marketers seek more 

definite guidance regarding what 

constitutes a ‘‘reasonably short period of 

time.’’ The Commission, therefore, 

proposes the following two 

modifications to the Guides. 

First, because the Guides do not 

currently illustrate a non-deceptive 

unqualified degradable claim for a solid 

item, the Commission proposes adding 

an example. Specifically, proposed new 

Example 5 describes a plant pot that, 

when buried in soil, quickly 

decomposes. This example illustrates 

that an unqualified degradable claim 

can be made non-deceptively about a 

solid item if the item is customarily 

disposed of in a manner that promotes 

total and rapid decomposition. 

Second, the APCO survey found that 

60 percent of consumers expect 

biodegradable solid waste to decompose 

in one year or less. Accordingly, the 

Commission proposes adopting a 

maximum period of one year for 

complete decomposition of solid 

materials marketed as degradable 

without time qualification. The 

Commission requests comment on 

whether this one-year period may lead 

to deceptive claims where consumers 

would expect a material to degrade in a 

much shorter time frame – e.g., a plant 

pot decomposing fully in a single 

growing season. 

b. Solid Waste – Substantiation 

As discussed above, several 

commenters suggested that the 

Commission reference technical 

standards that marketers could follow to 

substantiate degradability claims.202

Any technical protocol (or combination 

of protocols) must assure complete 

decomposition within one year and 

must replicate the physical conditions 

found in the relevant disposal 

environment (e.g., in landfills, where 

most trash is disposed). Commission 

staff has not identified testing protocols 

that satisfy these needs.203 Accordingly, 

the Commission does not propose 

creating a safe harbor for any particular 

technical standard. 

c. Liquid Waste 

The Commission received no 

comments concerning decomposition of 

liquids (or dissolvable solids) in 

wastewater or aquatic environments, 

and is unaware of consumer perception 

evidence relating to such degradable 

claims. Therefore, the Commission lacks 

sufficient information to give more 

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63570 Federal Register / Vol. 75, No. 199 / Friday, October 15, 2010 / Proposed Rules 

204 Although one group of testing protocols for 

biodegradability in water emphasizes a 28-day 

period for ‘‘ready biodegradability,’’ these tests do 

not appear to ensure the complete decomposition 

of the substance. EPA Office of Prevention, 

Pesticides and Toxic Substances, 835.3110 Ready 

Biodegradability Guideline, Pub. EPA 712-C-98-076 

(1998), available at (http://www.epa.gov/opptsfrs/ 

publications/OPPTS_Harmonized/ 

835_Fate_Transport_and_Transformation_ 

Test_Guidelines/Series/835-3110.pdf). 

205 EPA-SPN, Comment 536013-00062 at 6, 12. 

206 See, e.g., The recession: packaging fights back, 

Packaging Today, Feb. 2009, at 32 (oxo-degradable 

bottle); Print Media: Footprints with a lighter touch, 

Marketing Week, Mar. 27, 2008, at 23 (oxobiodegradable bag). 

207 OxoBiodegradable Plastics Institute, 

Frequently Asked Question 11, (http:// 

www.oxobio.org/faq.htm#q4) (‘‘Heat and/or sunlight 

are required to initiate degradation and there has to 

be oxygen present.’’); BPI, Background on 

Biodegradable Additives (Mar. 18, 2009) at 1 (‘‘Oxobiodegradables . . . theoretically foster oxidation and 

chain scission in plastics when exposed to heat, air 

and/or light.’’). 

208 The root word, degradable, is identical; 

consequently, consumers’ basic intuition about 

decomposition after customary disposal is likely to 

be the same, regardless of prefixes such as bio-, 

photo-, or oxo-. The National Advertising Division 

also found that oxo-biodegradable is similar to 

degradable. With respect to bags marketed as ‘‘100% 

oxo-biodegradable,’’ NAD recommended that the 

marketer discontinue the claim ‘‘and otherwise 

modify its advertising to avoid conveying the 

message that PolyGreen bags will quickly or 

completely biodegrade when disposed of through 

‘ordinary channels,’ e.g., when placed in a landfill.’’ 

NAD Press Release Regarding GP Plastics Corp.’s 

PolyGreen Plastic Bags (Mar. 9, 2009). 

209 For the purposes of interpreting and applying 

revised Section 260.8, the FTC considers the term 

‘‘degradable’’ to include all variants, such as 

biodegradable, photodegradable, oxo-degradable, 

and oxo-biodegradable. Thus, degradable claims 

include any and all of the foregoing. 

210 16 CFR 260.7(c). 

211 BPI, Comment 533431-00087 at 4; EPA-EPPP, 

Comment 533431-00038 at 8; EPA-SPN, Comment 

536013-00062 at 13; see also Earthcycle Packaging 

Ltd., Comment 534743-00005 at 1. 

212 See APCO, Biodegradable and Compostable 

Survey Topline at 9. 213 Id. at 8. 214 Id. at 6. 215 This proposed guidance can be found in 16 

CFR 260.7. 216 See Food Composting Infrastructure, 

BioCycle, Dec. 2008, at 30 (noting that in 2008, only 

92 commercial composters and 39 municipal 

composters provided food waste composting); EPA, 

Municipal Solid Waste in the United States: 2007 

Facts and Figures at 148, available at (http:// 

www.epa.gov/epawaste/nonhaz/municipal/pubs/ 

msw07-rpt.pdf) (‘‘In 2007, there were 16 mixed 

waste composting facilities, two more than in 

2006.’’). 

217 Example 4 in the current Guides suggests an 

effective qualification that would convey the 

definitive guidance on the ‘‘reasonably 

short period of time’’ for degradability 

claims for liquids.204 Accordingly, the 

Commission seeks consumer perception 

evidence regarding these degradable 

claims and requests comment on 

whether the Guides should specify a 

decomposition time period for liquid 

substances or dissolvable solids 

marketed without qualification. 

d. Emerging Oxo-degradable Claims 

The EPA’s Sustainable Products 

Network urged the Commission to 

include guidance concerning emerging 

degradable claims – ‘‘oxo-degradable’’ 

and ‘‘oxo-biodegradable.’’205 Claims 

relating to purported oxo-degradability 

have entered the marketplace in 

connection with some of the same 

disposable items, e.g., bottles and bags, 

that have featured other degradable 

claims.206 According to relevant trade 

associations, the technology behind 

these claims depends upon a catalyst, 

typically light or oxygen, to commence 

and sustain the decomposition 

process.207 However, as discussed 

above, these elements are lacking in 

customary methods of disposal. 

Although commenters did not provide 

any consumer perception evidence 

relating to oxo-degradable claims, it is 

likely consumers would understand 

these claims similarly to other 

degradable claims.208 Therefore, the 

Commission proposes treating oxodegradable and oxo-biodegradable 

claims like all other degradable 

claims.209

D. Compostable Claims 

1. The Current Guides 

Currently, the Guides advise 

marketers to substantiate compostable 

claims with competent and reliable 

scientific evidence demonstrating that 

‘‘all of the materials in the product or 

package will break down into, or 

otherwise become a part of, usable 

compost (e.g., soil-conditioning 

material, mulch) in a safe and timely 

manner in an appropriate composting 

program or facility, or in a home 

compost pile or device.’’210 Further, the 

Guides advise marketers to qualify 

compostable claims ‘‘to the extent 

necessary’’ to avoid consumer 

deception. For instance, they state: ‘‘A 

claim that a product is compostable in 

a municipal or institutional composting 

facility may need to be qualified’’ to 

alert consumers to any ‘‘limited 

availability of such composting 

facilities.’’ 

The Guides provide six examples 

illustrating this guidance, including 

several relating to the limited 

availability of large-scale composting 

facilities. For instance, Example 4 

discusses a product designed to be 

composted only in yard trimmings 

composting programs but merely 

labeled ‘‘compostable.’’ Such yard 

trimmings programs are not available to 

a substantial majority of consumers or 

communities where that particular 

product is sold. Consequently, the claim 

is deceptive, but could be corrected 

with a clear and prominent disclosure 

indicating the limited availability of 

such programs. 

2. Comments 

The comments on this issue were 

extremely limited. Some commenters 

suggested that the Guides state that two 

ASTM tests, specifications D 6400 and 

D 6868, constitute adequate 

substantiation for compostable 

claims.211

3. Consumer Perception Evidence 

As discussed above, the 

Biodegradable Products Institute 

submitted a consumer research study 

conducted by APCO concerning 

degradable and compostable claims. 

According to this study, 62 percent of 

consumers said they do not have access, 

and an additional 28 percent do not 

know if they have access, to large-scale 

composting facilities.212 Nevertheless, 

43 percent of consumers interpreted an 

unqualified compostable claim to mean 

that a large-scale composting facility is 

available in their area.213 The study also 

found that 71 percent of consumers 

believed that a package labeled 

‘‘compostable’’ would decompose in a 

home compost pile or device.214

4. Analysis and Guidance 

The Commission’s current 

compostable guidance is consistent with 

consumer perception data from the 

APCO survey. As discussed below, the 

Commission does not propose adding 

references to ASTM’s compostability 

tests to the Guides but proposes 

including advice concerning the ‘‘timely 

manner’’ of compost production.215

a. Limited Availability of Composting 

Facilities 

Large-scale composting facilities, 

particularly those taking feedstocks 

other than yard trimmings (e.g., leaves 

and grass), are still uncommon in the 

United States.216 Unsurprisingly, 90 

percent of consumers in the APCO 

survey reported having no access, or 

being unaware of access, to such 

facilities. Nevertheless, 43 percent 

interpreted an unqualified compostable 

claim to mean that such facilities are 

available in their area. 

In light of the persistent scarcity of 

municipal facilities and many 

consumers’ mistaken belief about their 

availability, the Commission proposes 

retaining its advice that marketers 

qualify their compostable claims to 

avoid deception about the limited 

availability of composting facilities.217

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scarcity of large-scale facilities, e.g., ‘‘Appropriate 

facilities may not exist in your area.’’ 16 CFR 

260.7(c), Example 4. 

218 Id. 

219 See Part V.E, infra. 

220 See Rhodes Yepsen, Compostable Products Go 

Mainstream, BioCycle, July 2009, at 25. 

221 See id.; Susan Moran, The New Bioplastics, 

More Than Just Forks, N.Y. Times, Mar. 7, 2007. 

222 See ASTM D 6400 – 04 at § 4; ASTM D 6868 

– 03 at § 4. These two protocols incorporate a third 

ASTM protocol, D 5338, a detailed test method for 

plastics disposed of in large-scale composting 

facilities. 

223 See ASTM D 6400 at § 1.1; ASTM D 6868 at 

§ 1.1. 

224 See ASTM D 5338 – 98 (Reapproved 2003) at 

§ 5.2 (‘‘Because there is a wide variation in the 

construction and operation of composting systems 

and because regulatory requirements for 

composting systems vary, this procedure is not 

intended to simulate the environment of any 

particular composting system. However, it is 

expected to resemble the environment of a 

composting process operated under optimum 

conditions.’’). One example of such an optimum 

condition is the testing of only a small piece of the 

subject material – a two-centimeter scrap – rather 

than full-size plastic feedstock waste items. 

225 EPA regulations contain detailed minimum 

requirements for landfills (40 CFR Part 258) and 

guidelines for incinerators (40 CFR Part 240). 

However, compost facility operations are not 

nationally standardized, apart from certain 

requirements applying to end-product safety – e.g., 

maximum hazardous materials levels (40 CFR Part 

503). States and localities range widely in their 

governance of these facilities. 

226 See, e.g., Lisa McKinnon, Compostable 

Controversy, Ventura County Star, Mar. 16, 2009 

(noting that a facility cannot convert plastics to 

compost in a commercially viable way within 90 

days); Press Release, Ohio University, Aug. 24, 

2009, available at (http://www.ohio.edu/outlook/08- 

09/August/791.cfm) (stating that a modern facility 

cannot process a brand of plastic dining utensils in 

a timely manner); Janice Sitton, Insider’s Guide to 

Compostables Collection at Events, BioCycle, Aug. 

2009, at 25 (‘‘[P]roducts accepted for composting in 

one location may not be accepted for composting 

in another location. It all depends on the 

infrastructure and what a processor will accept as 

feedstock.’’); Rhodes Yepsen, Operation Insights: 

Compostable Products, BioCycle, June 2008 

(Facilities may reject certain plastics because 

visually they ‘‘are indistinguishable from 

conventional plastics’’ and can be ‘‘tricky to 

compost.’’). 

227 Id. 

228 See Part V.C.4.a, supra. 

229 GPI requested clarification on the ‘‘timely 

manner’’ guidance. Comment 534743-00026 at 8. 

230 See 63 FR 24241 n.7 (May 1, 1998); FTC 

Staff’s Business Brochure at 7. 

231 16 CFR 260.7(d). 

232 See id., Examples 4, 6, and 7. 

Example 4 in the current Guides 

explains that this disclosure is needed 

when facilities ‘‘are not available to a 

substantial majority of consumers or 

communities.’’218 It does not, however, 

specify what proportion of consumers 

constitutes a substantial majority. As 

discussed below in the recyclable 

section, staff informally has interpreted 

‘‘substantial majority’’ in the recycling 

context to mean at least 60 percent.219

b. Substantiating Compostable Claims 

Three commenters suggested that the 

Guides reference two laboratory 

protocols adopted by ASTM: 

(1) Standard specification D 6400 for 

compostable plastics; and (2) Standard 

specification D 6868 for biodegradable 

plastics used as coatings. The 

commenters, however, did not explain 

why these protocols would substantiate 

compostable claims and thereby meet 

consumers’ expectations about 

compostable products. Based upon a 

review of the protocols’ methodology, 

the Commission does not propose 

referencing these protocols in the 

Guides. 

ASTM created D 6400 and D 6868 in 

response to manufacturers’ increased 

production of plant-based plastic 

resins.220 Marketers of these plant-based 

materials desired to contrast them with 

petroleum-based plastics and advertise 

them as ‘‘compostable.’’221 ASTM 

provides that a plastic item should be 

considered compostable if the item 

sufficiently converts to carbon dioxide 

under these protocols’ specific 

laboratory conditions.222

These protocols, however, have 

significant limitations. As a threshold 

matter, they apply to materials 

discarded only in scarce large-scale 

composting facilities, not home compost 

piles or devices.223 Moreover, the 

laboratory procedures ignore ‘‘wide 

variation’’ in actual composting facility 

operations, simulating instead 

‘‘optimum conditions.’’224

It is unclear whether these ‘‘optimum 

conditions’’ reflect real world 

conditions. There are no 

comprehensive, mandatory operating 

requirements for large-scale composting 

facilities.225 Instead, individual 

facilities appear to accept incoming 

plastic feedstock based upon a number 

of variables.226 Such variables include 

operator assumptions concerning 

whether the plastic is petroleum-based 

and the length of time an operator 

feasibly can wait to complete 

composting.227 Therefore, it is doubtful 

that there are typical large-scale 

composting practices consistent with 

the ASTM protocols, but more likely 

numerous and varied facility-specific 

restrictions on feedstock acceptance and 

processing. 

Given this uncertainty, it does not 

appear that the ASTM protocols 

substantiate compostable claims. 

Therefore, the Commission does not 

propose referencing the ASTM 

standards in the Guides. 

c. Time Period for Composting 

As discussed above, the Commission 

proposes adding specificity to the 

degradable guidance in connection with 

the ‘‘period of time’’ for solid waste 

decomposition.228 Consistent with that 

advice, the Commission proposes to 

clarify the time period referenced in the 

compostable section (i.e., ‘‘timely 

manner’’).229 Specifically, the 

Commission restates the position it 

articulated in its 1998 Green Guides 

review and proposes adding it to the 

compostable section.230 That is, ‘‘timely 

manner’’ means that the product or 

package will break down in 

approximately the same time as the 

materials with which it is composted, 

e.g., natural plant matter. 

E. Recyclable Claims 

1. The Current Guides 

The current Guides provide that 

marketers should not advertise a 

product or package as ‘‘recyclable’’ 

unless ‘‘it can be collected, separated, or 

otherwise recovered from the solid 

waste stream for reuse, or in the 

manufacture or assembly of another 

package or product, through an 

established recycling program.’’231 The 

Guides further state that marketers 

should qualify recyclability claims to 

the extent necessary to avoid deceiving 

consumers about the limited availability 

of recycling programs and collection 

sites. 

The Guides provide additional advice 

about the need for these disclosures and 

suggest qualifications depending on the 

level of available recycling facilities. 

Specifically, the Guides provide a threetiered disclosure approach. First, when 

recycling facilities are available to a 

‘‘substantial majority’’ of consumers or 

communities where the item is sold, 

marketers can make unqualified 

recyclable claims. Second, when 

facilities are available to a ‘‘significant 

percentage’’ of the population or 

communities, but not to a substantial 

majority, the Guides suggest that 

marketers qualify their claims by stating 

‘‘This product [package] may not be 

recyclable in your area’’ or ‘‘Recycling 

programs for this product [package] may 

not exist in your area’’ or by providing 

the approximate percentage of 

communities or the population to whom 

programs are available.232 Third, when 

recycling facilities are available to less 

than a significant percentage of 

communities or the population, the 

Guides recommend either disclosing 

that the product is recyclable only in the 

few communities with recycling 

facilities available for the particular 

product or stating the number of 

communities, the percentage of 

communities, or the percentage of the 

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233 See id., Example 6. 

234 See id., Example 5. 

235 FTC Staff’s Business Brochure at 8. 

236 Sara Hartwell, EPA (‘‘EPA’’), Green Packaging 

Workshop Tr. at 81, 92-93; Tetra Pak, Comment 

536013-00012 at 2; Vinyl Institute, Comment 

536013-00019 at 4-5. 

237 EPI, Green Packaging Workshop Tr. at 237- 

238. 

238 EPA, Green Packaging Workshop Tr. at 81, 92- 

93. 

239 MeadWestvaco, Comment 533431-00013 at 2; 

Tetra Pak, Comment 536013-00012 at 2; Vinyl 

Institute, Comment 536013-00019 at 4-5. 

240 ISO 14021 7.72:1999(E). 

241 Commenter MeadWestvaco explained that 

close alignment with global standards is critical to 

preventing market segmentation, yet because 

neither the Green Guides (with ‘‘substantial 

majority’’) nor ISO (with ‘‘reasonable proportion’’) 

has given numeric value to those terms, ‘‘confusion 

is commonplace.’’ Comment 533431-00013 at 2. 

242 See, e.g., Janice Frankle, Federal Trade 

Commission, Green Packaging Workshop Tr. at 100. 

243 AF&PA, Comment 534743-00031 at 2 (stating 

that it ‘‘would be helpful for the FTC to clarify 

definition of ‘substantial majority’’’); EPA, Green 

Packaging Workshop Tr. at 100 (recommending the 

FTC provide a ‘‘quantitative’’ interpretation of 

‘‘substantial majority’’); GreenBlue, Comment 

533431-00058 at 3; Kate Krebs, National Recycling 

Coalition (‘‘NRC’’), Green Packaging Workshop Tr. at 

92; see also International Paper, Comment 533431- 

00055 at 4 (noting that the access to recycling test 

needs to be made more explicit). 

244 EPI, Comment 533431-00063 at 3; see also 

AF&PA, Comment 534743-00031 at 2 (clarifying the 

definition of ‘‘substantial majority’’ would 

encourage the recovery of more materials that have 

the capacity to be recycled). Commenters also 

suggested that the FTC, or another agency, compile 

data concerning consumers’ access to recycling 

facilities for specific materials and provide a ‘‘safe 

harbor’’ list of materials that the FTC considers 

recyclable to a ‘‘substantial majority.’’ See, e.g., EPA, 

Green Packaging Workshop Tr. at 79-80; EPI, 

Comment 533431-00063 at 3; Este ́e Lauder, Green 

Packaging Workshop Tr. at 183; NRC, Green 

Packaging Workshop Tr. at 92. 

245 See, e.g., Tetra Pak, Comment 536013-00012 

at 2-3; Vinyl Institute, Comment 536013-00019 at 4- 

5. 

246 Tetra Pak, Comment 536013-00012 at 2-3. 

247 The three-chasing-arrows symbol is also 

known as the ‘‘Mo ̈bius Loop.’’ 

248 16 CFR 260.7(d), Example 2. 

249 Id. 

250 ABA, Comment 533431-00066 at 2-3; GPI, 

Comment 534743-00026 at 7. 

population where programs are 

available to recycle the product.233

The Guides further advise that the 

disclosure ‘‘recyclable where facilities 

exist’’ is not an adequate qualification 

where recycling facilities are not 

available to a substantial majority.234

Similarly, the FTC Staff’s Business 

Brochure cautions that the phrase 

‘‘check to see if recycling facilities exist 

in your area’’ is an inadequate 

qualification where recycling is not 

available to a substantial majority.235

2. Comments 

Recyclable claims garnered attention 

from many commenters. In particular, 

they addressed two issues: (1) the need 

for clarity regarding the ‘‘substantial 

majority’’ threshold; and (2) consumer 

confusion about the Society of the 

Plastics Industry code. 

a. The Substantial Majority Threshold 

As discussed above, the Guides advise 

marketers to qualify recyclable claims 

when recycling facilities are not 

available to a ‘‘substantial majority’’ of 

consumers or communities where a 

product is sold. Commenters identified 

difficulties in substantiating recyclable 

claims pursuant to this guidance. They 

did not agree, however, on how to 

modify the guidance, suggesting that the 

Commission either: (1) lower the 

substantial majority threshold; 

(2) quantify the substantial majority 

threshold; or (3) permit more positive 

disclosures when marketers do not meet 

the substantial majority threshold. 

i. Lower the Substantial Majority 

Threshold 

Several commenters urged the FTC to 

lower the Guides’ substantial majority 

threshold so that marketers could make 

an unqualified recyclable claim even 

when recycling facilities are not 

available to a substantial majority of 

consumers.236 Environmental Packaging 

International (‘‘EPI’’) suggested that the 

FTC consider a ‘‘middle ground,’’ where 

recyclability is available to ‘‘20 to 60 

percent’’ of communities.237 According 

to EPI, in order to meet the substantial 

majority standard, marketers must send 

their packaging to numerous 

communities to determine whether they 

can be recycled. Thus, EPI opined that 

a more lenient threshold would reduce 

this financial burden. An EPA staff 

member suggested that the substantial 

majority threshold may limit marketers’ 

ability to make recyclable claims for 

some products, which in turn may stifle 

efforts to develop recycling programs for 

those products.238

Other commenters suggested that the 

Commission consider adopting the ISO 

14021 Environmental Labels and 

Declarations – Self-Declared 

Environmental Claims Standard.239 In 

contrast to the Guides’ ‘‘substantial 

majority’’ threshold, ISO 14021 provides 

that marketers can make unqualified 

recyclable claims if recycling facilities 

are available to a ‘‘reasonable 

proportion’’ of consumers where the 

product is sold.240 However, the ISO 

standard does not quantify its 

reasonable proportion threshold.241

ii. Quantify the Substantial Majority 

Threshold 

Several commenters indicated that 

complying with the recyclable guidance 

is difficult because the Guides do not 

quantify the substantial majority 

threshold. Although Commission staff 

has informally interpreted the 

substantial majority threshold to be 

‘‘around 60 percent of consumers or 

communities,’’242 these commenters 

suggested that the Guides provide a 

specific percentage of consumers or 

communities that must have access to 

recycling to meet the threshold.243 For 

example, EPI opined that while there 

have been estimates of what constitutes 

a substantial majority, ‘‘these are not 

evident to businesses consulting the 

published Guides and should be made 

explicit in the document.’’244

iii. Permit Positive Disclosures for 

Recyclable Claims 

Several commenters recommended 

that the Guides permit ‘‘positive’’ 

disclosures for recyclable claims where 

recycling facilities are not available to a 

substantial majority of consumers or 

communities.245 They contended that 

the Guides’ suggested disclosures (e.g., 

‘‘this bottle may not be recyclable in 

your area’’) do not provide any incentive 

for consumers to determine if the 

product may be recyclable. One 

commenter suggested that the Guides 

permit disclosures, such as ‘‘check to see 

if this product/package is recyclable.’’ 

According to that commenter, this 

disclosure would encourage consumers 

to inquire whether recycling facilities 

exist, perhaps by referring to 

websites.246

b. Use of the SPI Code 

Developed by the Society of the 

Plastics Industry (‘‘SPI’’), the SPI code 

consists of a triangle composed of 

chasing arrows with a number in the 

middle that identifies the type of plastic 

resin from which a product is made. 

The Green Guides recognize that 

consumers may interpret the SPI code to 

mean that a package is recyclable 

because of its similarity to the universal 

recycling symbol, the three chasing 

arrows.247 To address this problem, the 

Guides explain that the SPI code is not 

likely to convey a recyclability claim if 

inconspicuously placed on the bottom 

of a product.248 In contrast, if the SPI 

code is displayed conspicuously, it is a 

‘‘recyclable’’ claim necessitating 

disclosure of the limited availability of 

recycling programs for the product, if 

facilities are not available to a 

substantial majority of consumers.249

Several commenters observed that 

even inconspicuous use of the SPI code 

may cause consumer confusion.250 The 

Glass Packaging Institute, for example, 

asserted that consumers believe the SPI 

code indicates the packaging can be 

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251 GPI, Comment 534743-00026 at 7; see also 

ISLR, Green Packaging Workshop Tr. at 141-42 

(noting that consumers confusing the SPI code on 

corn-based polylactic (‘‘PLA’’) bottles with the threechasing-arrows are inadvertently contaminating the 

recycling stream with bioplastics since most 

recycling facilities do not accept PLA). 

252 ABA, Comment 533431-00066 at 2. 

253 Id. at 2-3. 

254 Id. at 3; GPI, Comment 534743-00026 at 7. 

255 SPI, Comment 533431-00036 at 6; SPI, 

Comment 534743-00034 at 1. 

256 SPI, Comment 534743-00034 at 2. 

257 Id. 

258 Id. 

259 Id. at 3. According to SPI, 39 states have laws 

requiring use of the SPI code. SPI also commented 

that it is working to expand the resin identification 

code to address new types of plastics through an 

initiative with ASTM. SPI, Comment 533431-00036 

at 7. 

260 In addition to the changes discussed below, 

the Commission proposes revising footnote 4 in the 

recyclable section of the Guides. 16 CFR 260.7(d) 

n.4. The existing footnote states the Commission 

deems batteries labeled in accordance with the 

Mercury-Containing and Rechargeable Battery 

Management Act to be in compliance with the 

Guides. This footnote describes the required 

labeling in detail, but does not explain that 

manufacturers may apply to EPA to use alternative 

labels. Rather than explaining each provision of the 

Act in this footnote, the Commission proposes to 

simplify the note to simply state that batteries 

labeled in accordance with the Act are deemed in 

compliance with the Guides. 

261 This proposed guidance can be found in 16 

CFR 260.11. 

262 63 FR 24240, 24243 (May 1, 1998). 

263 FTC Staff concluded that the 60 percent figure 

is an appropriate minimum threshold because it is 

consistent with the plain meaning of ‘‘substantial 

majority.’’ The adjective ‘‘substantial’’ requires that 

there be something greater than a simple majority. 

Sixty percent is not so high that it permits 

unqualified claims only when nearly all 

communities have recycling facilities. Staff further 

found that this figure is consistent with previous 

Commission statements and court decisions. See, 

e.g., 73 FR 51164, 51177 (Aug. 29, 2008) (‘‘[A] 

substantial majority of consumers dislike 

telemarketing calls that deliver prerecorded 

messages. . . . [A]t least 65 to 85 percent of 

consumers do not wish to receive prerecorded 

telemarketing calls.’’); Report to Congress: 

Marketing Food to Children and Adolescents, at 3- 

4 (July 2008) (‘‘In addition . . . , the companies 

accounted for 60% to 90% of U.S. sales. Therefore, 

the Commission believes that the companies that 

received and responded . . . were responsible for a 

substantial majority of expenditures for food and 

Continued 

recycled regardless of the consumer’s 

geographic location.251 Similarly, the 

American Beverage Association (‘‘ABA’’) 

observed that consumers interpret the 

SPI code – regardless of where the code 

is located, or what number is inside the 

code – to mean the package is 

‘‘recyclable.’’252 The ABA argued that 

due to this incorrect belief, consumers 

discard non-recyclable packaging into 

recycling bins that then require extra 

sorting or ultimately result in 

contamination of the recycled plastic 

feedstock.253 These commenters urged 

the FTC to revise the Guides to clarify 

that the SPI codes are, in fact, 

recyclability claims that must be 

properly qualified.254

SPI countered that the Guides 

properly recognize that inconspicuous 

use of the SPI code is not a recyclability 

claim. It emphasized that the code was 

designed to help companies easily and 

quickly communicate the makeup of 

plastic packages to downstream 

consumers and recyclers sorting these 

products into various recycling 

streams.255 As such, SPI stated that it 

has guidelines, consistent with those 

mandated by state law, for the proper 

sizing and positioning of the code on 

containers and bottles.256 For example, 

SPI noted that its guidelines provide 

that the code ‘‘should be molded, 

formed or imprinted’’ and should appear 

on the bottom of the container, as close 

to the center as feasible, so that it can 

be quickly located and easily 

identified.257 SPI’s guidelines also state 

that the code should ‘‘be applied where 

it will be inconspicuous to the 

consumer at the point of purchase so it 

does not influence the consumer’s 

buying decision,’’ and ‘‘[r]ecyclable’ and 

other environmental claims should not 

be made in close proximity to the code, 

even if such claims are properly 

qualified.’’258 According to SPI, if the 

FTC were to abandon its position that 

inconspicuous use of the SPI code is not 

an environmental claim, it would 

impose an undue burden on the plastics 

industry and its customers who are 

complying with state law.259

3. Analysis and Guidance 

The comments demonstrate the 

continuing importance of the recyclable 

section of the Guides. However, 

commenters suggested certain revisions 

to enhance the section’s effectiveness 

for both businesses and consumers. The 

following analysis addresses these 

comments.260

a. The Substantial Majority Threshold 

Commenters offered several 

recommendations regarding the 

substantial majority threshold for 

making unqualified recyclable claims, 

including lowering the threshold and 

quantifying the threshold. As explained 

below, the Commission does not believe 

that the record warrants lowering the 

threshold.261 The Commission, 

however, requests comment on whether 

the Guides should formally quantify the 

threshold, and, if so, how. 

i. Retaining the Substantial Majority 

Threshold 

At the end of its 1998 Green Guides 

review, the Commission retained the 

substantial majority threshold, citing 

consumer perception research 

demonstrating that consumers are likely 

to perceive unqualified recyclable 

claims to mean that a product can be 

recycled in their community.262 Several 

commenters in the current review 

disagreed with this decision and 

recommended that the Commission 

lower the threshold. No commenters, 

however, submitted consumer 

perception evidence that would warrant 

such a change. 

Some commenters contended that the 

substantial majority threshold may stifle 

recycling efforts because it forces 

marketers to send their products or 

packaging to numerous communities to 

determine if they can satisfy the 

threshold. Even if true, however, this 

argument would not provide a sufficient 

basis to revise the threshold. The 

purpose of the Green Guides is not to 

promote recycling or to minimize costs 

for marketers making recycling claims. 

Rather, it is to ensure that marketers’ 

claims are consistent with consumer 

perception and thereby prevent 

deception. Commenters did not submit 

any evidence demonstrating that 

consumers have altered their view that 

an unqualified recyclable claim means 

that recycling facilities are available in 

their area. As a result, the Commission 

does not have any evidence that would 

warrant changing its conclusion. 

As noted above, several commenters 

recommended that the Commission 

consider replacing the substantial 

majority threshold with the ISO 14021 

‘‘reasonable proportion’’ threshold. The 

ISO 14021 reasonable proportion 

standard arguably permits unqualified 

recyclable claims where less than a 

majority of communities have access to 

recycling facilities for a given product or 

package. However, because consumers 

interpret unqualified recyclable claims 

to mean that facilities are available in 

their area, the Commission has no basis 

for adopting this standard. 

ii. Quantifying the Substantial Majority 

Threshold 

As noted by several commenters, the 

ambiguity of the substantial majority 

standard causes problems. One marketer 

might interpret 55 percent as a 

substantial majority and, thus, make an 

unqualified recyclable claim. A 

competitor might believe that 

substantial majority means 75 percent 

and, thus, decline to make the same 

claim. Commission staff, therefore, has 

informally interpreted substantial 

majority to mean at least 60 percent.263

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63574 Federal Register / Vol. 75, No. 199 / Friday, October 15, 2010 / Proposed Rules 

beverage marketing to children and adolescents 

during 2006.’’); Mihailovich v. Laatsch, 359 F.3d 

892, 909-10 (7th Cir. 2004) (75 percent is substantial 

majority); United States v. Alcoa, Inc., 152 F. Supp. 

2d 37, 39 (D.D.C. 2001) (59 percent is substantial 

majority). 

264 The Commission does not propose quantifying 

a ‘‘significant percentage’’ at this time. The 

comments focused on the substantial majority 

threshold for making unqualified recyclable claims 

and did not discuss the significant percentage 

threshold for making certain qualified recyclable 

claims. It is unclear if providing guidance on this 

phrase would be useful for marketers. The 

Commission, therefore, requests comment on this 

issue. 

265 63 FR 24244 (May 1, 1998). 

266 Id. The Commission included an example in 

the Guides demonstrating that the ‘‘recyclable 

where facilities exist’’ disclosure is inadequate. 16 

CFR 260.7(d), Example 5. The FTC Staff’s Business 

Brochure included an example specifying that the 

‘‘check to see’’ disclosure was inadequate. FTC 

Staff’s Business Brochure at 8. 

267 16 CFR 260.7(e). 

268 As illustrated by Example 1, spills and scraps 

that are normally reused by industry within the 

original manufacturing process – and that, 

therefore, would not normally have entered the 

waste stream – do not constitute recycled content. 

269 The Guides also provide that marketers 

should qualify a recycled content claim for 

products containing used, reconditioned, or 

remanufactured components. A claim need not be 

qualified where it is clear that the recycled content 

comes from used, reconditioned, or remanufactured 

components. 16 CFR 260.7(e). None of the 

commenters addressed the Commission’s guidance 

on these issues. 

270 Id., Example 9: ‘‘A paper greeting card is 

labeled as containing 50% recycled fiber. The seller 

purchases paper stock from several sources and the 

amount of recycled fiber in the stock provided by 

each source varies. Because the 50% figure is based 

on the annual weighted average of recycled material 

purchased from the sources after accounting for 

fiber loss during the production process, the claim 

is permissible.’’ 

271 FTC Staff’s Business Brochure at 11. 

The Commission proposes to advise 

marketers of this informal guidance in a 

footnote in the Guides. The Commission 

also requests comment on whether the 

Guides should formally quantify 

‘‘substantial majority,’’ and, if so, what 

the appropriate minimum figure should 

be. 

The Commission also proposes to 

improve the readability of this section 

and to make clear in the text of the 

recyclable section that it is using a 

three-tiered analysis for qualifying 

recyclable claims. The appropriate 

qualifications vary depending upon 

whether recycling facilities are available 

to: (1) at least a substantial majority; 

(2) at least a significant percentage but 

not a substantial majority; or (3) less 

than a significant percentage of 

consumers or communities.264

Currently, the recyclable section 

provides this guidance only in the 

examples. By highlighting this guidance 

in the text, the information should be 

more accessible. 

b. Use of Positive Disclosures 

As noted above, several commenters 

recommended that the Guides permit 

positive disclosures where recycling 

facilities are not available to a 

substantial majority of communities or 

consumers (e.g., ‘‘check to see if 

facilities exist in your area’’). The 

Commission previously determined that 

these types of positive disclosures, 

standing alone, are not sufficient to 

correct consumers’ misimpressions, 

and, in fact, may reinforce them. Prior 

to the 1998 revisions, the recyclable 

section expressly stated that ‘‘recyclable 

where facilities exist’’ was an 

appropriate disclosure. However, in 

1998, the Commission highlighted 

consumer perception data suggesting 

that consumers interpreted this phrase 

and a similar phrase, ‘‘check to see if 

recycling facilities exist in your area,’’ to 

mean that recycling programs did, in 

fact, exist in their area.265 Based on that 

data, the Commission changed its 

guidance and withdrew its approval of 

those disclosures.266

Commenters have provided no 

consumer perception evidence to alter 

this conclusion. The Commission, 

therefore, declines to include such 

disclosures in the Guides, and instead 

proposes to revise the Guides to make 

clear that, standing alone, ‘‘check to see’’ 

disclosures do not adequately qualify 

recyclable claims. The Commission 

proposes modifying existing Example 5 

to illustrate that both disclosures – 

‘‘recyclable where facilities exist’’ and 

‘‘check to see if recycling facilities exist 

in your area’’ – are inadequate. 

Although the Commission retains its 

finding that ‘‘check to see’’ disclosures 

standing alone are insufficient, such 

positive disclosures, including those 

referring to websites or toll-free 

telephone numbers, may be appropriate 

in combination with the disclosures that 

the Commission has provided in its 

examples. Thus, a disclosure such as 

‘‘Recyclable – recycling programs for 

this product may not exist. Call 1-800- 

XXX-XXXX’’ likely would not be 

deceptive. 

c. Use of the SPI Code 

Although some commenters asserted 

that consumers perceive even 

inconspicuously placed SPI codes as 

recyclable claims, they did not provide 

any consumer perception evidence to 

support their assertions. In the absence 

of consumer perception evidence, the 

Commission does not propose 

modifying Example 2 of the recyclable 

guide, which discusses the use of the 

SPI code. 

F. Recycled Content Claims 

1. The Current Guides 

The Guides provide that marketers 

may make a recycled content claim only 

for materials that have been recovered 

or otherwise diverted from the solid 

waste stream, either during the 

manufacturing process (pre-consumer) 

or after consumer use (postconsumer).267 To make a pre-consumer 

recycled content claim, an advertiser 

must substantiate that the pre-consumer 

material would otherwise have entered 

the solid waste stream.268 The Guides 

do not advise marketers to distinguish 

between pre-consumer and postconsumer materials, but marketers may 

do so. Marketers must substantiate any 

express or implied claims about the 

specific amount of pre- or postconsumer content in their products. 

The Guides further advise marketers 

that consumers interpret unqualified 

recycled content claims to mean that the 

entire product or package, excluding 

minor, incidental components, is made 

from recycled material. For products or 

packages that are only partially made of 

recycled material, marketers should 

qualify a recycled content claim to 

avoid consumer deception.269

Example 9 of the Guides indicates 

that a claim about the percentage of 

recycled content may be based on the 

annual weighted average of the recycled 

content in a product.270 The FTC Staff’s 

Business Brochure, however, cautions 

marketers not to use such averaging if 

reasonable consumers interpret the 

recycled content claim to mean that 

each labeled item contains at least the 

described amount of recycled 

content.271

2. Comments 

The commenters addressing recycled 

content claims discussed three main 

issues: (1) pre-consumer recycled 

content claims for textile products; 

(2) the distinction between pre- and 

post-consumer recycled content claims; 

and (3) the methods for calculating 

recycled content. 

a. Pre-consumer Recycled Content 

Claims for Textiles 

Several commenters stated that the 

Guides do not provide sufficient 

guidance regarding pre-consumer 

recycled content claims for textile 

products. For instance, the EPA’s 

Sustainable Products Network (‘‘EPASPN’’) stated that it would be helpful to 

have more specific guidance, including 

examples, to help determine whether 

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272 EPA-SPN, Comment 536013-00062 at 2. 

273 Id. at 2-3. 

274 Valdese Weavers, Comment 536013-0006 at 1. 

275 Another commenter recommended that the 

Guides allow pre-consumer recycled content claims 

if synthetic polymers change in form, such as from 

a chip to fiber to yarn. Designtex, Comment 533431- 

00024 at 1. 

276 AF&PA, Comment 533431-00083 at 1-2; FBA, 

Comment 533431-00015 at 2. They contend that the 

overwhelming majority of fibers recovered and 

recycled are post-consumer, and that the distinction 

between pre-consumer and post-consumer materials 

‘‘is not meaningful to the consumer.’’ Id. 

277 Another commenter, however, recommended 

that the Guides continue to permit marketers to 

distinguish between pre-consumer and postconsumer materials. Amy Wilson, Comment 

534743-00004 at 1. A different commenter 

recommended that the Guides should permit 

recycled content claims only for post-consumer 

materials. Tracy Artley, Comment 534743-00019 at 

1. 

278 PRC, Comment 533431-00035 at 1-2, 

Comment 534743-00024 at 1-2, Comment 534743- 

00023 at 3. ISO 14021 defines post-consumer 

material as ‘‘[m]aterial generated by households or 

by commercial, industrial and institutional facilities 

in their role as end-users of the product which can 

no longer be used for its intended purpose. This 

includes returns of material from the distribution 

chain.’’ ISO 14021 7.8.1.1(a)(2):1999(E). 

279 PRC, Comment 534743-00024 at 2. 

280 Id. 

281 Bailey, Comment 533431-00028 at 6; 

GreenBlue, Comment 533431-00058 at 8; NAIMA, 

Comment 533431-00042 at 15; SDA, Comment 

533431-00020 at 3; Saint-Gobain, Comment 533431- 

00037 at 15; Stepan Company, Comment 533431- 

00011 at 3. 

282 AF&PA, Comment 533431-00083 at 2-3; 

Georgia-Pacific, Comment 533431-00007 at 9; 

MBDC, Comment 533431-00022 at 1-3; 

MeadWestvaco, Comment 533431-00013 at 2; 

Weyerhaeuser, Comment 533431-00084 at 6. 

283 Georgia-Pacific, Comment 533431-00007 at 9. 

284 MBDC, Comment 533431-00022 at 1-2. This 

commenter claimed that vertically-integrated 

manufacturers have difficulty achieving high perproduct percentages because of challenges tracking 

materials in large operations, incorporating high 

percentages of recycled content in high-volume 

product lines, and using high percentages of 

recycled content in products without affecting their 

performance. 

285 Shaw Industries Group, Inc. (‘‘Shaw’’), 

Comment 533431-00050 at 1-3; see also Sappi, 

Comment 534743-00023 at 3-5 (recommending 

‘‘credit system’’ for recycled content). 

286 Bailey, Comment 533431-00028 at 6; Stepan 

Company, Comment 533431-00011 at 3. 

287 Further, 26 percent stated that the claim 

means that ‘‘some’’ of the product was made with 

recycled materials; 15 percent stated that the claim 

does not suggest anything about how much of the 

product was made with recycled materials; and 5 

percent stated they were not sure. These figures 

total 101 percent because of rounding. These 

percentages were derived by combining the 

responses to all claims that included the phrase 

‘‘made with recycled materials’’ (i.e., ‘‘made with 

recycled materials,’’ ‘‘green - made with recycled 

materials,’’ ‘‘eco-friendly - made with recycled 

materials,’’ and ‘‘sustainable - made with recycled 

materials’’). 

288 This number is net of the non-environmental 

control claim. 

consumer recycled content.272 EPA-SPN 

noted that re-use of off-quality materials 

generated during the manufacturing 

process presents difficult questions and 

suggested that several factors may be 

relevant to determine whether such 

materials should be regarded as preconsumer recycled content or as 

industrial scrap that is normally reused 

in the manufacturing process. EPA-SPN 

indicated that an important factor may 

be whether the material must undergo 

significant processing before it can be 

reused.273

Another commenter stated that the 

Guides do not account for innovation in 

the textile industry.274 It noted that, for 

years, the textile industry has sought to 

prevent material from entering the solid 

waste stream and that ‘‘down cycling’’ 

(such as using waste yarn as fiber fill in 

toys) was common. The commenter said 

that more recent innovations seek to 

create high value raw materials from the 

waste product and provided examples 

of such developments. This commenter 

sought guidance on whether such 

material could be considered recycled 

content.275

b. Distinction Between Pre- and Postconsumer Recycled Content 

The commenters raised two issues 

with respect to the Guides’ distinction 

between pre-consumer and postconsumer recycled content. First, two 

commenters stated that the Guides 

should ‘‘eliminate the artificial 

distinction’’ between pre-consumer and 

post-consumer materials for recycled 

paper.276 Although it is not entirely 

clear, it appears that these commenters 

believe the Guides should advise 

marketers not to distinguish between 

the amount of pre-consumer and postconsumer materials used in an item. 

Rather, marketers should make claims 

only about the total amount of recycled 

content (which combines both pre- and 

post-consumer material).277

Second, another commenter 

recommended that the Guides adopt the 

ISO 14021 approach to post-consumer 

material.278 This commenter explained 

that ISO 14021 contains a more 

expansive definition of ‘‘post-consumer’’ 

material than the Guides because it 

includes ‘‘returns of material from the 

distribution chain.’’ The commenter 

argued that U.S. companies may be at a 

disadvantage relative to international 

companies that can claim a higher 

percentage of post-consumer recycled 

content under ISO 14021.279 The 

commenter urged the FTC to adopt 

ISO’s definition, noting that federal law 

requires government agencies to use 

such voluntary standards when they are 

available.280

c. Calculating Recycled Content 

The commenters had differing 

opinions regarding the appropriate 

methods to calculate recycled content. 

Several recommended that the Guides 

continue to use the annual weighted 

average.281 Others recommended 

revising the Green Guides to permit 

alternative calculation methods.282 For 

example, one commenter recommended 

that the Guides permit the use of the 

annual weighted average for the specific 

company’s business or the use of an 

industry sector annual weighted 

average.283 Another argued that 

requiring each product to have a 

minimum percentage of recycled 

content may limit the ability of 

vertically-integrated manufacturers to 

use recycled content.284 Yet another 

argued that the Commission should 

consider a ‘‘mass allocation’’ 

methodology that would permit 

recycled content ‘‘offsets.’’ Under this 

approach, a company could earn credits 

for using recycled content and allocate 

those credits to make claims for other 

products.285 Some commenters, 

however, argued that these alternative 

approaches could mislead consumers by 

implying that individual products have 

a greater percentage of recycled content 

than they actually do.286

3. Consumer Perception Evidence 

The Commission’s consumer 

perception study tested respondents’ 

understanding of the phrase ‘‘made with 

recycled materials’’ as this claim 

appeared on three different products – 

wrapping paper, a laundry basket, and 

kitchen flooring. The study asked 

respondents whether a statement that a 

product is ‘‘made with recycled 

materials’’ suggests that all, most, or 

some of the materials were made with 

recycled material. The largest group, 35 

percent, indicated that they would 

interpret the claim as meaning that ‘‘all’’ 

of the product was made with recycled 

materials, while 20 percent believed 

that ‘‘most’’ of the product was made 

with recycled materials.287

The study further explored which 

claims were implied by a product 

advertised as ‘‘made with recycled 

materials.’’ The responses to a closedended question indicated that 52 

percent of respondents believe that a 

‘‘made with recycled materials’’ claim 

suggests that the advertised product was 

recyclable.288 The study also used an 

open-ended question to explore this 

same point. In response, only three 

percent said that the statement suggests 

the product is recyclable. Not 

surprisingly, a majority, 57 percent, 

stated that the advertised product was 

made of recycled content. 

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289 16 CFR 260.7(e). The Guides further specify 

that the advertiser must have substantiation that the 

material would otherwise have entered the solid 

waste stream. 

290 See 16 CFR 260.7(e), Example 1; see also 16 

CFR 260.7(e), Examples 2 and 3. 

291 The difficulty in determining whether 

material qualifies as pre-consumer recycled content 

is not exclusive to the textile industry. One 

commenter from the lumber industry expressed 

concern about the pre-consumer recycled content 

claims of its competitors. Weyerhaeuser, Comment 

533431-00084 at 6. It asserted that some companies 

interpret recycled content to include chips 

produced by sawmills as a byproduct of lumber 

production. Weyerhaeuser stated that it did not 

believe that this was a common interpretation of 

recycled content and did not treat such materials 

as recycled content. Id. 

292 One textile industry member suggested that 

recycled content claims hinge on whether there has 

been a change in form (e.g., from chip to fiber to 

yarn). In the Commission’s judgment, it is unlikely 

that consumers would perceive material as recycled 

content merely because of a change in form. 

293 This guidance can now be found in 16 CFR 

260.12. 

294 16 CFR 260.7(e), Example 9. 

295 As noted above, one commenter argued that 

requiring products to have a minimum percentage 

of recycled content may constrain the ability of 

vertically-integrated manufacturers to use recycled 

content. The Guides do not specify minimum 

recycled content levels for products. The Guides 

permit marketers to make recycled content claims 

for products with only a small percentage of 

recycled content, as long as the claims are 

adequately qualified. 

4. Analysis and Guidance 

The comments sought additional 

guidance concerning recycled content 

claims, focusing mainly on preconsumer recycled content claims for 

textiles, the distinction between preand post-consumer recycled content, 

and the appropriate methods for 

calculating recycled content. The 

Commission analyzes these issues as 

well as issues raised by its consumer 

perception study below. 

a. Pre-consumer Recycled Content 

Claims for Textiles 

Although the Guides do not 

specifically address textiles, they 

provide advice concerning recycled 

content claims for all products, 

including textiles. To constitute preconsumer recycled content, materials 

must have been ‘‘recovered or otherwise 

diverted from the solid waste stream 

. . . during the manufacturing process 

(pre-consumer)....’’289 Examples 1-3 in 

the current Guides discuss factors 

relevant to determining whether the 

material was diverted from the solid 

waste stream – the amount of 

reprocessing needed before reuse and 

whether the material is normally reused 

in ‘‘the original manufacturing process.’’ 

Specifically, when spilled raw materials 

and scraps undergo only ‘‘a minimal 

amount of reprocessing’’ and are 

‘‘normally reused in the original 

manufacturing process,’’ they are not 

diverted from the solid waste stream 

(and, therefore, do not qualify as 

recycled content).290

The commenters’ discussion of 

innovations in the textile industry 

highlights difficulties in using the 

existing guidance to determine whether 

a particular material qualifies as 

recycled content.291 The commenters 

explain that the textile industry for 

many years has sought to reuse waste 

materials from the manufacturing 

process and that recent innovations 

have allowed manufacturers to put that 

material to higher use. These innovative 

processes likely do not divert the waste 

material from the solid waste stream 

because the material already was being 

reused (albeit in a lower value form). 

Despite the fact that these higher-use 

processes do not satisfy the 

Commission’s guidance on recycled 

content (diversion from the solid waste 

stream), they satisfy the two factors the 

Commission considers in determining if 

waste is diverted from the solid waste 

stream. Specifically, the innovations 

may involve significant reprocessing 

before the material can be reused, and 

the material may be reused in something 

different from the original 

manufacturing process. These 

innovations, therefore, reveal some 

ambiguity in the Commission’s current 

guidance. 

The comments, however, did not 

address the broader issue of whether the 

Commission should revise its guidance 

for pre-consumer recycled materials 

generally, and, if so, what changes it 

should make.292 For instance, the 

comments did not address whether the 

Commission should eliminate the 

factors it currently uses to determine if 

material is diverted from the solid waste 

stream. In addition, it is unclear 

whether consumers interpret recycled 

content to mean more than diversion 

from the solid waste stream. For 

example, do they believe that any 

material that is significantly reprocessed 

and reused constitutes recycled content? 

If material is reused in place of virgin 

material, do consumers consider that 

material recycled content? If, over time, 

it becomes standard practice within an 

industry to reuse certain material, do 

consumers still regard that material as 

constituting recycled content? The 

Commission, therefore, declines to 

propose changes to its guidance at this 

time.293 Instead, the Commission 

solicits comment on what changes, if 

any, it should make to its existing 

guidance on pre-consumer recycled 

content claims for all products. In 

particular, the Commission seeks 

evidence of consumer perception of preconsumer recycled content claims. 

b. Distinction Between Pre- and Postconsumer Recycled Content 

Some commenters recommended that 

the Guides advise marketers to make 

claims only for the total amount of 

recycled content in an item, and not to 

distinguish between the amount of preconsumer and post-consumer materials 

used in that item. The Commission does 

not propose adding this advice to the 

Guides. Currently, marketers making 

recycled content claims have the option 

to disclose whether the recycled content 

is pre-consumer or post-consumer. The 

Commission has no evidence that 

specific claims about the type of 

recycled content mislead consumers. In 

the absence of evidence that these terms 

are deceptive, the Commission declines 

to advise marketers that they should 

discontinue using them. 

The Commission also does not 

propose incorporating the ISO 14021 

definition of ‘‘post-consumer’’ material 

into the Guides. As discussed above, 

material returned from the distribution 

chain (e.g., overstock magazines) 

qualifies as ‘‘post-consumer’’ recycled 

material under ISO 14021. It is unlikely, 

however, that consumers would 

interpret such material as ‘‘postconsumer’’ recycled content because the 

material never actually reaches 

consumers. The commenters did not 

provide any consumer perception 

evidence to the contrary. Under the 

Guides, therefore, marketers may claim 

that this material constitutes recycled 

content, but not ‘‘post-consumer’’ 

recycled content. 

c. Calculating Recycled Content 

Currently, the Guides advise 

marketers that recycled content claims 

may be based on the annual weighted 

average of recycled content in an 

item.294 Certain commenters suggested 

that the Guides allow for alternative 

calculation methods, such as the 

average amount of recycled content 

within a product line or across all 

product lines, or an offset-based 

approach.295

The Commission does not propose 

making the suggested changes. As some 

commenters cautioned, claims based on 

these alternative calculation methods 

could mislead consumers by implying 

that products contain more recycled 

content than they actually do. Indeed, 

these approaches could permit 

marketers to make recycled content 

claims for products that do not contain 

any such material. For example, a 

marketer may sell residential carpeting 

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296 For mathematical simplicity, the hypothetical 

assumes equal sales of each product. 

297 16 CFR 260.7(e), Example 9. 

298 Although relatively few products are made 

from 100 percent recycled materials, those that are 

– including some paper products and some glass 

products – appear to be recyclable. See, e.g., (http:// 

www.epa.gov/wastes/conserve/materials/paper/ 

faqs.htm). 

299 16 CFR 260.7(h). 

300 Example 1 also notes that Class I chemicals 

include chlorofluorocarbons (CFCs), halons, carbon 

tetrachloride, 1,1,1-trichloroethane, methyl 

bromide, and hydrobromofluorocarbons (HBFCs) 

and that Class II chemicals are 

hydrochlorofluorocarbons (HCFCs). 

that contains no recycled content and 

commercial carpeting that contains 50 

percent. If the marketer believes that 

individuals are more interested than 

businesses in recycled content, it could 

choose to average the amount of 

recycled content in both products and 

then make a 25 percent recycled content 

claim for its residential carpeting (even 

though this carpeting contains no 

recycled content).296 Such a claim 

appears to be deceptive; therefore, 

without consumer perception evidence 

to the contrary, the Commission 

declines to sanction it. 

The Commission, however, proposes 

retaining Example 9, which illustrates 

that using annual weighted average is 

not deceptive.297 The Guides have 

included this example since 1992, and 

there is no evidence that consumers 

have been deceived by recycled content 

claims based on this type of calculation. 

Moreover, it does not appear that 

consumers would likely be deceived by 

a percentage recycled content claim for 

a single product because their chances 

of getting a product with a lower 

percentage of recycled content is 

roughly the same as their chances of 

getting one with a higher percentage. At 

least theoretically, however, using 

annual weighted average could lead to 

deception. For example, a company 

could use two manufacturing sites to 

make the same product – one using 

recycled content but selling to local 

consumers who give little weight to this 

fact, and another using no recycled 

content but selling to local consumers 

who place a premium on products 

containing recycled materials. In this 

circumstance, the company could use 

the annual weighted average to make 

recycled content claims to the second 

set of consumers, even though those 

consumers would never receive 

products with such content. The 

Commission, therefore, requests 

comment on whether recycled content 

claims based on annual weighted 

average are misleading, and, if so, 

whether these claims should be 

qualified. 

d. Unqualified Recycled Content Claims 

The Guides currently advise 

marketers to qualify recycled content 

claims unless the entire product or 

package, excluding minor, incidental 

components, is made with recycled 

content. Any needed qualifications 

should specify the percentage of 

recycled content in the item. The 

Commission’s study indicates that this 

guidance remains valid. Specifically, a 

significant minority of respondents (35 

percent) indicated that an unqualified 

recycled content claim means that all of 

the product was made with recycled 

materials. The Commission, therefore, 

proposes retaining this guidance. 

e. Implied Claims 

The results of the Commission’s 

consumer perception study suggest that 

some consumers understand a ‘‘made 

with recycled materials’’ claim to 

convey a recyclable claim. In response 

to a closed-ended question, 52 percent 

of respondents indicated that they 

believed that a ‘‘made with recycled 

materials’’ claim suggested that the 

product was recyclable. In response to 

an open-ended question, however, only 

three percent of respondents stated that 

they thought the advertised product was 

recyclable. 

Although the responses to the closedended questions suggest that many 

consumers may perceive an implied 

recyclable claim, the Commission does 

not propose advising marketers that 

make unqualified recycled content 

claims to disclose if their product is not 

recyclable. Even if some consumers do 

perceive an implied recyclable claim, 

their understanding appears to be 

accurate. The Commission’s study asked 

respondents only about an unqualified 

‘‘made with recycled materials’’ claim. 

Assuming marketers are following the 

Guides, they make unqualified recycled 

content claims only where the products 

are made from 100 percent recycled 

materials. Products that are made of 100 

percent recycled materials appear to be 

recyclable.298 Assuming this is the case, 

marketers would be able to substantiate 

any implied claim that their product is 

recyclable. Therefore, the Commission 

does not propose advising marketers 

that make unqualified recycled content 

claims to disclose that the product is not 

recyclable. The Commission requests 

comment on this advice and seeks any 

additional consumer perception 

evidence addressing this issue. 

The Commission also does not 

propose such guidance for marketers 

making qualified recycled materials 

claims, such as ‘‘made with 50 percent 

recycled materials.’’ It is unclear 

whether consumers believe that a 

qualified recycled materials claim 

suggests that the product is also 

recyclable. Without such evidence, the 

Commission is hesitant to advise 

marketers to make such disclosures. The 

Commission, nevertheless, requests 

comment on its proposal and, in 

particular, seeks any consumer 

perception evidence. 

G. Ozone-Safe and Ozone-Friendly 

Claims 

1. The Current Guides 

The current Guides state that it is 

deceptive to misrepresent, directly or by 

implication, that a product is safe for, or 

‘‘friendly’’ to, the ozone layer or the 

atmosphere.299 This section contains 

four examples. 

Example 1 provides that an ozone 

friendly claim is deceptive if the 

product ‘‘contains any ozone-depleting 

substance, including those listed as 

Class I or Class II chemicals in Title VI 

of the Clean Air Act Amendments of 

1990, Pub. L. No. 101-549, and others 

subsequently designated by the EPA as 

ozone-depleting substances.’’300

Example 2 illustrates that an ozone 

friendly claim may be deceptive, even if 

the product does not contain ozonedepleting chemicals. In this example, an 

aerosol air freshener is labeled 

‘‘ozone friendly’’ but contains volatile 

organic compounds, which may cause 

smog. Even though the product does not 

contain ozone-depleting substances, the 

unqualified ozone friendly claim is 

deceptive because it inaccurately 

conveys that the product is safe for the 

atmosphere as a whole. 

Example 3 discusses an unqualified 

claim that an aerosol product ‘‘contains 

no CFCs.’’ Although the product does 

not contain CFCs, it contains HCFC-22, 

another ozone-depleting substance. 

Because the no-CFCs claim likely 

implies that the product does not harm 

the ozone layer, the claim is deceptive. 

Finally, Example 4 illustrates a 

qualified comparative ozone-related 

claim that is unlikely to be deceptive. 

This example states that a product is 

labeled ‘‘95% less damaging to the 

ozone layer than past formulations that 

contained CFCs,’’ and explains that the 

manufacturer has substituted HCFCs for 

CFC-12. If the marketer can substantiate 

the decrease in ozone depletion, this 

qualified comparative claim is not likely 

to be deceptive. 

2. Comments 

Several commenters discussed the 

Guides’ treatment of ozone-safe and noCFCs claims. The EPA’s Stratospheric 

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301 Letter from the EPA Stratospheric Protection 

Division, Mar. 18, 2010, available at (http:// 

www.ftc.gov/green). 

302 Several commenters also mentioned no-CFCs 

claims, but only to provide context for their 

recommendation that the Commission provide 

guidance on free-of claims generally, which the 

Commission discusses in detail in Part V.H below. 

Eastman Chemical Company (‘‘Eastman’’), Comment 

533431-00051 at 2; GPI, Comment 534743-00026 at 

11; GreenBlue, Comment 533431-00058 at 4; SPI, 

Comment 533431-00036 at 10. 

303 TerraChoice, Comment 533431-00040 at 1, 

attached report ‘‘The Six Sins of Greenwashing’’ at 

4. 

304 EHS, Comment 534743-00011 at 2. 

305 Letter from the EPA Stratospheric Protection 

Division. 

306 At least with respect to ozone-depletion 

claims for packaging, one commenter offered a 

different view, stating that ozone-related claims are 

no longer of significant relevance because of 

changes in packaging. GPI, Comment 534743-00026 

at 11. 

307 This proposed guidance can be found in 16 

CFR 260.10. 

308 Specifically, the Commission proposes that a 

claim that a product does not contain a substance 

may be deceptive if that substance has never been 

associated with the product. category. 

309 16 CFR 260.6(c), Example 4. 

310 Example 4 provides a qualified claim – 

‘‘bleached with a process that substantially reduces, 

but does not eliminate, harmful substances 

associated with chlorine bleaching’’ – that likely 

would not be deceptive. 

311 16 CFR 260.7(a), Example 4. 

312 16 CFR 260.7(h), Example 3. 

313 Eastman, Comment 533431-00051 at 2; GPI, 

Comment 534743-00026 at 11; GreenBlue, 

Comment 533431-00058 at 4; SPI, Comment 

533431-00036 at 10. One commenter noted that 

because CFCs have been banned it is not clear 

whether the Guides’ treatment of no-CFCs claims 

would also apply to other substances. Eastman, 

Comment 533431-00051 at 2. 

Protection Division (‘‘EPA-SPD’’), which 

regulates ozone-depleting substances, 

stated that the Guides should continue 

to provide guidance concerning ozonesafe claims and allow marketers to use 

no-CFCs claims.301 The EPA-SPD 

explained that no-CFCs claims may 

provide useful information to 

consumers because many consumers do 

not realize that CFCs are no longer used. 

Other commenters disagreed, and 

argued that the Guides should advise 

marketers not to make no-CFCs 

claims.302 One commenter stated that 

because CFCs have been banned for 

almost 30 years, no-CFCs claims do not 

distinguish a marketer’s product from 

other CFC-free products.303 Another 

similarly stated that ‘‘given the universal 

ban on ozone depleting substances,’’ 

ozone-safe claims imply that products 

without that claim contain ozonedepleting substances. Therefore, the 

commenter argued that ‘‘there really is 

no reason to continue use of this 

claim.’’304

In addition to the general discussion 

regarding ozone-safe and no-CFCs 

claims, the EPA-SPD recommended 

several modifications to the examples in 

the Guides.305 First, the EPA-SPD stated 

that the Commission should delete the 

references to HCFC-22 in Examples 3 

and 4 because of EPA’s general 

prohibition on the use of newly 

produced ozone-depleting chemicals 

HCFC-22 and HCFC-14b. Second, the 

EPA-SPD recommended that the 

Commission provide guidance for air 

conditioning manufacturers that 

substitute non-ozone depleting 

refrigerants for the prohibited HCFCs. 

Specifically, EPA-SPD suggested 

advising marketers not to make 

unqualified ‘‘environmentally friendly’’ 

claims about their air-conditioning 

equipment. The EPA-SPD noted this 

equipment still may have adverse 

environmental effects because it uses 

large quantities of energy and because 

its refrigerants are greenhouse gases.306

3. Analysis and Guidance 

Based on the record, the Commission 

proposes retaining its guidance 

regarding ozone- safe claims.307 Below, 

the Commission addresses the two 

specific issues raised by commenters: 

(1) the use of no-CFCs claims; and 

(2) modification to the Guides’ 

examples. 

First, the Commission does not 

propose advising marketers to avoid 

using no-CFCs claims. Although CFCs 

have been banned for years, the 

Commission agrees with EPA-SPD that 

many consumers may not realize this is 

the case. Consumers may still associate 

CFCs with certain products, such as 

aerosol sprays. No-CFCs claims may 

provide valuable information to these 

consumers who might otherwise assume 

that certain products have the negative 

environmental effects associated with 

CFCs. This conclusion is consistent 

with the Commission’s proposed 

guidance concerning no or free-of 

claims generally, discussed below.308

The Commission, however, seeks any 

consumer perception evidence 

concerning no-CFCs claims. 

Second, the Commission proposes 

deleting current Examples 3 and 4 in the 

Guides, which both reference HCFC-22, 

in light of EPA’s general prohibition on 

its use. The Commission, however, 

proposes adding a new example, as 

recommended by the EPA-SPD, to 

illustrate that ‘‘environmentally 

friendly’’ claims by an air conditioning 

equipment manufacturer may be 

deceptive, even if the manufacturer has 

substituted non-ozone depleting 

refrigerants. This general environmental 

benefit claim likely would convey to 

consumers that the product has far 

reaching environmental benefits. 

Because currently available air 

conditioning equipment relies on 

refrigerants that are greenhouse gases 

and also consume a substantial amount 

of energy, this claim likely would be 

deceptive. 

H. Free-of and Non-toxic Claims 

1. The Current Guides 

The current Guides do not contain a 

section that specifically addresses 

claims that products or services have 

no, are free of, or do not contain certain 

substances (‘‘free-of claims’’) or that they 

are non-toxic. The current Guides, 

however, include three examples that 

address such claims. 

Example 4 in the ‘‘overstatement of 

environmental attribute’’ portion of 

Section 260.6 discusses a ‘‘chlorine-free 

bleaching process’’ claim for coffee 

filters.309 The coffee filters are bleached 

without chlorine, but with a process 

that releases a reduced, but still 

significant, amount of the same harmful 

byproducts associated with chlorine 

bleaching. The claim, therefore, likely 

overstates the product’s benefits because 

consumers likely would interpret the 

claim to mean that the manufacturing 

process does not cause any of the 

environmental harm that chlorine 

bleaching does.310

Example 4 in the general 

environmental benefit claims section 

addresses claims that a lawn care 

pesticide is ‘‘essentially non-toxic’’ and 

‘‘practically non-toxic.’’311 Consumers 

likely would interpret these claims to 

mean that the pesticide does not pose 

any risk to both human health and the 

environment. The example states that 

the claims would be deceptive if the 

pesticide poses a significant risk to 

either. 

Finally, Example 3 in the ozone safe 

and ozone friendly section discusses an 

unqualified claim that an aerosol 

product ‘‘contains no CFCs.’’312

Although the product does not contain 

CFCs, it contains another ozone 

depleting substance. Because the noCFCs claim likely implies that the 

product does not harm the ozone layer, 

the claim is deceptive. 

2. Comments 

a. Free-of Claims 

Numerous commenters recommended 

that the Commission provide further 

guidance regarding free-of claims. 

Several noted that the Guides address 

no-CFCs claims only in an example and 

suggested that the Commission address 

free-of claims generally.313

Several commenters discussed the 

appropriate standard for determining 

whether a product is free of a 

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314 CSPA, Comment 533431-00049 at 4; EHS, 

Comment 533431-00057 at 1; Johns Manville, 

Comment 536013-00034 at 4. Several commenters 

stated that generic ‘‘chemical-free’’ claims are 

misleading because nothing is actually chemicalfree. EHS, Comment 533431-00057 at 1; OMI, 

Comment 536013-00022 at 1; TerraChoice, 

Comment 533431-00040, attached report ‘‘The Six 

Sins of Greenwashing’’ at 3. 

315 EHS, Comment 533431-00057 at 1. 

316 CSPA, Comment 533431-00049 at 4 (quoting 

ISO 14021). Another commenter recommended that 

the Commission look to ISO 14021 for guidance on 

free-of claims. 3M Company, Comment 533431- 

00027 at 3. 

317 Johns Manville, Comment 536013-00034 at 2. 

318 See, e.g., GPI, Comment 534743-00026 at 11; 

NAIMA, Comment 533431-00042 at 10-11; SaintGobain, Comment 533431-00037 at 9-10. 

319 CSPA, Comment 533431-00049 at 4; Johns 

Manville, Comment 536013-00034 at 2; NAIMA, 

Comment 533431-00042 at 10; Saint-Gobain, 

Comment 533431-00037 at 9-10; TerraChoice, 

Comment 533431-00040, attached report ‘‘The Six 

Sins of Greenwashing’’ at 4. 

320 CSPA, Comment 533431-00049 at 4. 

321 NAIMA, Comment 533431-00042 at 10. 

322 ACC, Comment 533431-00023 at 4; 

Formaldehyde Council, Comment 533431-00047 at 

2-3; Vinyl Institute, Comment 533431-00046 at 2-3. 

323 Id. 

324 Id. 

325 Id. 

326 Id. 

327 Eastman, Comment 533431-00051 at 2-3; 

Johns Manville, Comment 536013-00034 at 3-5. 

328 Johns Manville, Comment 536013-00034 at 3. 

329 Eastman, Comment 533431-00051 at 2; Johns 

Manville, Comment 536013-00048 at 3-4. 

330 NAD, Comment 534743-00029 at 4. 

331 Although the NAD determined that the 

formaldehyde-free claim was appropriate, it also 

found that the manufacturer should discontinue 

comparative claims that, without proper support, 

raised doubts about the safety of competing 

products. Id. 

332 EPA-SPN, Comment 536013-00062 at 4; 

Seventh Generation, Comment 533431-00033 at 6; 

TerraChoice, Comment 533431-00040, attached 

report ‘‘The Six Sins of Greenwashing’’ at 3. 

333 TerraChoice, Comment 533431-00040, 

attached report ‘‘The Six Sins of Greenwashing’’ at 

3. 

334 EPA-SPN, Comment 536013-00062 at 4. 

335 Id. 

336 Id. 

337 NAIMA, Comment 533431-00042 at 8; SaintGobain, Comment 533431-00037 at 9. 

338 This proposed guidance can be found in 16 

CFR 260.9. 

substance.314 One argued that a product 

is not free of a substance if the 

substance is present at greater than 

background or regulated levels.315

Similarly, one commenter noted that 

under the ISO 14021 standard, 

marketers can make free-of claims only 

if the ‘‘specified substance is no more 

than that which would be found as an 

acknowledged trace contaminant or 

background level.’’316 Finally, another 

contended that free-of claims should be 

substantiated by evidence that: ‘‘(1) none 

of the chemical was added during the 

manufacturing process, and (2) when 

tested, the product does not emit or offgas levels of the chemical that are 

material to consumers, i.e., in the 

context of health considerations, no 

more than background and applicable 

health-based standards for safe 

exposure.’’317

Several commenters stated that 

truthful free-of claims may be 

misleading. For example, some 

commenters raised concerns that a 

truthful free-of claim could mislead 

consumers if the marketer does not 

disclose that the product contains other 

substances that may be harmful to the 

environment.318 Others stated that a 

claim that a product is free of a 

substance may be deceptive if the 

substance is not typically associated 

with the product and competitors’ 

products do not typically contain the 

substance.319 One commenter noted that 

the ISO 14021 standard does not permit 

free-of claims if the substance has never 

been associated with the product.320

Another commenter illustrated this 

point with an ‘‘extreme hypothetical,’’ in 

which a marketer’s claim that its fruit 

juice does not contain cyanide could 

mislead consumers by suggesting that 

other fruit juices do.321

Several commenters raised two 

concerns that unqualified free-of claims 

imply other environmental claims.322

First, they stated that while a free-of 

claim explicitly conveys that a product 

does not contain a certain substance, it 

also implies that a product is superior 

to other products that contain the 

substance.323 They argued that free-of 

claims should be qualified to inform 

consumers of the basis of the 

comparison, such as whether the free-of 

claim is relevant to the environmental 

or health risks or the performance of the 

product.324 Second, they asserted that 

free-of claims are often general claims of 

environmental benefit, i.e., claims that 

products without the specified 

substance are good for the 

environment.325 They recommended 

that such claims not be permitted 

without qualifying language that 

substantiates both the express claim and 

all implied claims.326

Other commenters, however, stated 

that free-of claims may provide valuable 

information to consumers and do not 

necessarily imply additional 

comparative or general environmental 

benefit claims.327 One commenter 

explained that these claims should be 

qualified only if they are susceptible to 

more than one interpretation by a noninsignificant portion of the target 

audience and at least one such 

interpretation is false, misleading, or 

unsubstantiated.328 They recommended 

that the Commission not establish a 

bright-line rule requiring that marketers 

qualify all free-of claims.329

The National Advertising Review 

Council submitted comments 

summarizing the National Advertising 

Division (‘‘NAD’’) cases addressing 

environmental claims, including several 

cases that involved claims that products 

were free of, or did not contain, certain 

substances.330 In one case, the NAD 

found that a manufacturer adequately 

substantiated a formaldehyde-free claim 

for insulation.331 The NAD concluded 

that it was appropriate for the advertiser 

to make a formaldehyde-free claim, even 

if the insulation emitted a de minimis 

amount of formaldehyde because it 

would be inconsequential to consumers. 

The NAD noted that the determination 

of whether an amount is de minimis 

depends on the substance at issue and 

requires a case-by-case analysis. 

b. Non-toxic Claims 

Commenters discussed several issues 

raised by non-toxic claims.332 One 

commenter stated that a non-toxic claim 

is vague, noting that everything is toxic 

in sufficient doses.333

The EPA’s Sustainable Products 

Network (‘‘EPA-SPN’’) stated that, 

consistent with the example in the 

current Green Guides, consumers likely 

would interpret non-toxic claims 

broadly. Accordingly, the EPA-SPN 

stated that non-toxic claims should be 

supported by evidence that addresses 

health and environmental effects for all 

exposed populations.334

The EPA-SPN also noted that nontoxic claims based on regulatory 

definitions may mislead consumers.335

The EPA-SPN stated that regulatory 

agencies typically set thresholds to 

identify moderate to high toxicity levels, 

and the fact that a substance does not 

exceed the regulatory standard does not 

necessarily mean that it is non-toxic.336

Addressing specific products, two 

commenters stated that insulation 

manufacturers make non-toxic claims 

but use toxic fire retardants.337 These 

commenters recommend prohibiting 

non-toxic claims if the product contains 

toxic substances in amounts of 10 

percent of weight or more. 

3. Analysis and Guidance 

The Commission agrees with 

commenters that it should provide 

expanded guidance for free-of and nontoxic claims. Accordingly, the 

Commission proposes including a new 

Guides section to address these 

claims.338 The Commission also 

proposes moving two of the three 

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339 See 75 FR 41696, 41715 (July 10, 2010) 

(requiring that labels for compact fluorescent light 

bulbs disclose that the bulbs contain mercury). 

340 ISO 14021 states that free-of claims should not 

be based on ‘‘the absence of ingredients or features 

which have never been associated with the product 

category.’’ ISO 14021 5.7(p):1999(E). See also 

Environmental Claims: A Guide for Industry and 

Advertisers, Competition Bureau Canada, Canadian 

Standards Association, June 25, 2008, Clause 5.17. 

341 If reasonable consumers would interpret a 

particular free-of claim as making a general 

environmental claim, then the marketer should 

comply with the guidance in revised Section 260.4 

regarding general environmental benefit claims. 

342 The Commission also proposes moving the 

example into this new proposed section. 343 SDA, Comment 534743-00028 at 2. 344 This guidance can now be found in 16 CFR 

260.16. 

examples in the current Guides, cited 

above, into this section, and adding an 

additional example. 

a. Free-of Claims 

Marketers can always substantiate 

free-of claims by confirming that their 

products are, in fact, completely free of 

the relevant substance. As noted above, 

however, commenters raised a more 

difficult issue: whether marketers 

should be able to make free-of claims if 

their products contain background 

levels or trace amounts of a substance. 

No commenters provided evidence 

regarding how consumers interpret freeof claims. Accordingly, the Commission 

must apply its own expertise to 

determine how consumers likely would 

interpret such claims. Consistent with 

the NAD decision, discussed above, the 

Commission proposes advising that freeof claims may be appropriate where a 

product contains a de minimis amount 

of a substance that would be 

inconsequential to consumers. To 

illustrate this point, the Commission 

proposes adding a new example. In 

proposed Example 2, an insulation 

seller advertises its product as 

‘‘formaldehyde-free.’’ Although the seller 

does not use formaldehyde as a binding 

agent to produce the insulation, tests 

show that the insulation emits trace 

amounts of formaldehyde. The seller 

has substantiation that formaldehyde is 

produced both synthetically and at low 

levels by people, animals, and plants; 

that the substance is present in most 

indoor and (to a lesser extent) outdoor 

environments; and that its insulation 

emits lower levels of formaldehyde than 

are typically present in outdoor 

environments. In this context, the trace 

amount of formaldehyde likely would 

be inconsequential to consumers, and, 

as a result, a formaldehyde-free claim 

likely would not be deceptive. 

However, as the NAD cautioned, the 

determination of what constitutes de 

minimis depends upon the substance at 

issue and, therefore, requires a case-bycase analysis. In some cases, consumers 

may view the presence of even trace 

amounts of a substance as material. For 

example, trace amounts of a substance 

such as mercury, which is toxic and 

may accumulate in the tissues of 

humans and other organisms, likely 

would be relevant to consumers.339

As suggested by several commenters, 

the Commission proposes cautioning 

marketers that an otherwise truthful 

free-of claim may nevertheless be 

deceptive. For example, it may be 

deceptive if a marketer claims that its 

product is free of a particular substance 

but does not disclose that the product 

contains another substance that may 

cause environmental harm, particularly 

if it is the same type of harm caused by 

the absent substance. To illustrate this 

point, the Commission proposes moving 

the chlorine-free coffee filter example, 

discussed above, into the new proposed 

section. 

The Commission also proposes 

advising marketers that an otherwise 

truthful claim that a product is free of 

a substance may be deceptive if the 

substance has never been associated 

with that product category. This 

proposed guidance is consistent with 

ISO 14021’s free-of standards.340 Such 

claims may deceive consumers by 

falsely suggesting that competing 

products contain the substance or that 

the marketer has ‘‘improved’’ the 

product by removing the substance. 

However, in some circumstances, these 

claims may provide useful information 

to consumers who are interested in 

knowing whether a particular substance 

is present in a product. This could be 

the case, for example, where products in 

one category contain a substance and 

products in a competing category do 

not. Marketers making such ‘‘free-of’’ 

claims can minimize the risk of 

deception if they clarify that the entire 

product category is free of the 

substance. The Commission solicits 

comment on what guidance it should 

give for ‘‘free-of’’ claims based on 

substances which have never been 

associated with a product category. The 

Commission also seeks consumer 

perception evidence regarding these 

claims. 

The Commission also agrees with 

several commenters that free-of claims 

may, depending on the context, convey 

that the product has broad 

environmental benefits or is 

environmentally superior to competing 

products. Thus, a marketer who makes 

a free-of claim that reasonable 

consumers would interpret to convey 

additional environmental claims must 

have substantiation for all of those 

claims.341 The Commission, however, 

declines to advise that all free-of claims 

be qualified. In the absence of evidence 

that reasonable consumers would, no 

matter the context, perceive free-of 

claims as making implied general 

environmental benefit or comparative 

superiority claims, such guidance is not 

appropriate. 

b. Non-toxic Claims 

The Commission proposes moving its 

guidance concerning non-toxic claims 

from the existing example in current 

Section 260.7(a) to the proposed new 

Section 260.9.342 This proposed section 

states that consumers likely think a nontoxic claim conveys that a product is 

non-toxic both for humans and for the 

environment. This section also advises 

marketers to qualify non-toxic claims to 

the extent necessary to avoid consumer 

deception. 

Marketers should use caution when 

relying on regulatory standards as 

substantiation for claims that products 

are non-toxic. Reasonable consumers 

would likely interpret non-toxic claims 

to mean that a product is not harmful 

to humans or to the environment. Yet, 

as EPA-SPN noted, some regulatory 

thresholds allow moderately to highly 

toxic substances that do not meet these 

consumer expectations. Therefore, 

marketers should examine the scope 

and purpose of the regulatory standard 

to ensure that it substantiates a nontoxic claim in light of consumer 

expectations. For example, the standard 

for acute toxicity, which measures the 

effects of the substance from exposure 

during a short time period, may not 

provide an appropriate basis for nontoxic claims if the substance may be 

toxic to humans or the environment 

over a longer period of time. 

I. Source Reduction Claims 

Section 260.7(f) of the Guides states 

that it is deceptive to misrepresent that 

a product or package has been reduced 

in size or is lower in weight, volume, or 

toxicity. The Guides advise marketers to 

qualify source reduction claims to avoid 

deception about the amount of the 

reduction and the basis for any 

comparison. The Soap and Detergent 

Association agreed that marketers 

should qualify source reduction claims 

and ‘‘measure source reduction through 

a ‘package weight per unit or use of the 

product’ approach as well as physical 

reduction of packaging material.’’343 No 

comments suggested modifying the 

guidance in this section. The 

Commission, therefore, proposes 

retaining this section without change.344

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345 GPI, Comment 534743-00026 at 8-9. 

346 This guidance can now be found in 16 CFR 

260.13. 

347 See, e.g., Eastman, Comment 533431-00051 at 

1 (stating that ‘‘sustainable’’ and ‘‘green’’ are the most 

‘‘significant new additions’’ to the vocabulary 

describing the environmental benefits of products); 

Dow, Comment 533431-00010 at 9. 

348 GMA, Green Packaging Workshop Tr. at 112; 

see also ACC, Green Packaging Workshop Tr. at 

241; Weyerhaeuser, Comment 533431-00084 at 2. 

349 See, e.g., Dow, Comment 533431-00010 at 8; 

FPI, Comment 533431-00074 at 2; GMA, Green 

Packaging Workshop Presentation at (http:// 

www.ftc.gov/bcp/workshops/packaging/ 

presentations/tullier.pdf); International Paper, 

Comment 533431-00055 at 8. 

350 Anne Johnson, The Sustainable Packaging 

Coalition (‘‘SPC’’), Green Packaging Workshop 

Presentation at (http://www.ftc.gov/bcp/workshops/ 

packaging/presentations/johnson.pdf). SPC 

remarked that this definition is an ‘‘aspirational 

vision’’ rather than a standard. This definition 

includes packaging that, among other things, ‘‘is 

sourced, manufactured, transported, and recycled 

using renewable energy’’; ‘‘is made from renewable 

or recycled source materials’’; and ‘‘is made from 

materials healthy in all probable end of life 

scenarios.’’ See SPC, Green Packaging Workshop Tr. 

at 127, 131. 

351 Center for Sustainable Innovation, Comment 

534743-00003 at 2. 

352 EHS, Comment 534743-00011 at 1; EPI, 

Comment 533431-00063 at 4; GMA, Comment 

533431-00045 at 9; Georgia-Pacific, Comment 

533431-00007 at 8; GreenBlue, Comment 533431- 

00058 at 7; NAIMA, Comment 536013-00017 at 12- 

13; Saint-Gobain, Comment 533431-00037 at 12. 

353 NAIMA, Comment 536013-00017 at 12-13; 

Saint-Gobain, Comment 533431-00037 at 12. 

354 EPI, Comment 533431-00063 at 4; see also 

GMA, Comment 533431-00045 at 9 (‘‘[T]he Guides 

should be updated to include a discussion of 

‘sustainable’ claims and what constitutes a 

reasonable basis for substantiating such claims.’’). 

355 EPI, Comment 533431-00063 at 4. 

356 See 16 C.F.R. Part 260.7(a); see also BSR, 

Comment 533431-00016 at 1; P&G, Comment 

533431-00070 at 2; SDA, Comment 534743-00028 at 

1; SPI, Comment 533431-00036 at 5; Seventh 

Generation, Comment 533431-00033 at 5; 

Weyerhaeuser, Comment 533431-00086 at 1. 

357 SDA, Comment 534743-00028 at 1-2; see also 

GMA, Comment 533431-00045 at 8-9 (recognizing 

complexity of measuring sustainability, but arguing 

for allowing such claims when qualified with a 

statement identifying environmental product 

attributes); ACC, Comment 533431-00023 at 8-9; 

Dow, Comment 533431-00010 at 10; Formaldehyde 

Council, Comment 533431-00047 at 5; GeorgiaPacific, Comment 533431-00007 at 8; Hammer, 

Comment 533431-00017 at 9; P&G, Comment 

533431-00070 at 3; Seventh Generation, Comment 

533431-00033 at 5; Vinyl Institute, Comment 

533431-00046 at 3. 

358 CSPA, Comment 533431-00049 at 3 (stating 

comparative sustainability claims ‘‘should have a 

clear basis for verification, such as certified life 

cycle assessment’’); Rachel Chadderdon and 

Meghan Genovese, Comment 533431-00054 at 1 

(arguing that, because no product can be fully 

sustainable unless all aspects of its life cycle meet 

the criteria for sustainability, marketers wishing to 

make environmental sustainability claims ‘‘must 

disclose exactly which components of the 

production cycle are and are not sustainable’’); 

Stepan Company, Comment 533431-00011 at 2; 

Tandus, Comment 536013-00037 at 1. 

359 Eastman, Comment 533431-00051 at 1 

(suggesting the Guides define sustainability for 

marketing purposes and provide categories of 

industry practices and product properties that 

support this definition); GMA, Green Packaging 

Workshop Tr. at 143 (recommending the Guides 

include examples on how to qualify sustainability 

claims to ‘‘put [them] in the proper context’’); EPI, 

Green Packaging Workshop Tr. at 210; GPI, 

Comment 534743-00026 at 10; USGBC, Comment 

534743-00027 at 3. 

360 See EHS, Comment 534743-00011 at 1 (stating 

that ‘‘sustainable’’ should not appear as a product 

or package descriptor because ‘‘[t]he term is illdefined and made up of several factors, often 

specific to a particular product or manufacturer’’); 

GreenBlue, Comment 533431-00058 at 7 (‘‘We 

recommend strengthening the Guides to actively 

discourage companies from describing their 

products as . . . ‘sustainable.’’’); William Mankin, 

Continued 

J. Refillable Claims 

Section 260.7(g) states that it is 

deceptive to misrepresent that a package 

is refillable. It advises marketers not to 

make an unqualified refillable claims 

unless: (1) they provide a system to 

collect and return the package for refill; 

or (2) consumers can refill the package 

with a separately purchased product. 

The Glass Packaging Institute stated that 

this guidance remains useful, and no 

other commenters recommended 

changes.345 The Commission, therefore, 

proposes retaining this section.346

VI. Claims Not Addressed by the 

Current Green Guides 

The Commission asked commenters 

to discuss whether and how the Guides 

should be modified to address the use 

of environmental marketing claims that 

either are new or were not common 

during the last Guides review. 

Commenters discussed five types of 

claims: (1) sustainable; (2) organic/ 

natural; (3) made with renewable 

materials; (4) made with renewable 

energy; and (5) carbon offsets. For each 

of these claims, the following 

summarizes the comments and the 

relevant workshop discussions, reviews 

the consumer perception evidence, and 

provides the Commission’s analysis. 

A. Sustainable Claims 

1. Comments 

Many commenters and workshop 

panelists addressed whether the 

Commission should revise the Guides to 

address sustainable claims. Commenters 

disagreed on the meaning of sustainable 

and whether the term could even be 

defined. Some argued the claim should 

be banned, while others asserted it 

could be used properly in certain 

contexts. Others observed that the term 

may be used to convey information 

about a company’s environmental 

philosophies, independent of specific 

product claims. 

Many commenters observed that the 

term ‘‘sustainable’’ has become part of 

the national vernacular.347 GMA, for 

example, cited a study finding that from 

September 2006 through December 

2007, the use of the term on Internet 

blogs increased more than 100 

percent.348

Several Packaging Workshop panelists 

noted that sustainable claims may 

embrace such diverse issues as child 

labor, community relations, economic 

development, and other nonenvironmental considerations.349 For 

example, the Sustainable Packaging 

Coalition’s ‘‘vision’’ for sustainable 

packaging includes the aspiration that 

the packaging ‘‘benefits individuals and 

communities throughout its life 

cycle.’’350 Another commenter, the 

Center for Sustainable Innovation, 

broadly defined sustainability as ‘‘how 

an organization contributes, or aims to 

contribute in the future, to the 

improvement or deterioration of 

economic, environmental, and social 

conditions, developments, and trends at 

the local, regional, or global level.’’351

Several commenters asserted that 

there is no clear understanding of the 

term, not just for the typical consumer, 

but among experts and business 

managers.352 These commenters, 

however, disagreed regarding whether 

the FTC should attempt to define the 

specific attributes of sustainability. For 

example, some urged the FTC ‘‘to avoid 

tackling the onerous and possibly 

unachievable task of defining the 

specific attributes of sustainability.’’353

In contrast, others argued that the 

Guides should address the term.354 The 

Environmental Packaging Institute, for 

example, suggested that the term 

‘‘sustainable’’ warrants the addition of a 

new section ‘‘complete with guidance, 

specific criteria, and examples.’’355

Because of the claim’s expansiveness, 

several commenters likened the term 

‘‘sustainable’’ to general environmental 

benefit claims.356 Thus, some of these 

commenters recommended that the 

Guides caution that the term 

‘‘sustainable’’ be accompanied by 

language limiting its environmental 

superiority claim to the particular 

attribute, or attributes, that can be 

substantiated.357 Others suggested that 

marketers making sustainable claims 

should demonstrate that all aspects of a 

product’s life cycle meet the criteria for 

sustainability.358 Some suggested that 

the FTC include new examples using 

the term ‘‘sustainable’’ in the general 

environmental benefit claim section of 

the Guides to clarify which 

sustainability claims may be 

deceptive.359

On the other hand, some commenters 

argued that the term ‘‘sustainable’’ 

simply should not be used as a 

marketing claim.360 The Sustainable 

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63582 Federal Register / Vol. 75, No. 199 / Friday, October 15, 2010 / Proposed Rules 

Comment 534743-00020 at 1 (stating that the FTC 

should prohibit use of the term ‘‘sustainable’’ and 

any claims related to the sustainability of a product 

in all on-product or off-product labels or claims); 

ILSR, Green Packaging Workshop Tr. at 144. 

361 SPC, Green Packaging Workshop Presentation 

at (http://www.ftc.gov/bcp/workshops/packaging/ 

presentations/johnson.pdf). 

362 Id. But see ACC, Comment 533431-00023 at 

9 (asserting the Guides should cover sustainability 

claims because they can be appropriately qualified); 

AF&PA, Comment 533431-00083 at 3-4 

(recommending the Guides allow use of 

‘‘sustainable,’’ provided the marketer transparently 

communicates a reasonable basis for the claim; also 

noting that ISO is expecting to amend its current 

prohibition of the term due to growing experience 

and new consumer attitudes). 

363 See, e.g., CRI, Comment 533431-00026 at 1 

(recommending the Guides distinguish between 

‘‘sustainability (zero net impact) and environmental 

attributes (minimal net impact),’’ which contribute 

to sustainability); ACC, Comment 533431-00023 at 

8; Weyerhaeuser, Comment 533431-00084 at 5-6. 

364 ACC, Comment 533431-00023 at 8 (emphasis 

in original). 

365 Weyerhaeuser, Comment 533431-00084 at 5. 

ISO 5.5 states that no claim of achieving 

sustainability shall be made because there are no 

definitive methods for measuring sustainability or 

confirming its accomplishment. ISO 14021 

5.5:1999(E). 

366 SFI, Comment 534743-00010 at 3-4; see also 

AF&PA, Comment 534743-00031 at 2 (‘‘A broad 

definition of sustainability may be adopted by the 

FTC, but . . . specific sectors should be able to 

develop focused definitions that meet the needs of 

that sector.’’); Weyerhaeuser, Comment 534743- 

00033 at 1 (stating that a claim of ‘‘sustainable 

forestry’’ in the context of a forest certification 

system ‘‘provides consumers with specific, factual 

information and is not a broad claim’’). 

367 In support of its argument, SFI referenced the 

Canadian Competition Bureau’s analysis of ISO 

140121, clause 5.5, ‘‘which prohibits general and 

undefined claims of sustainability, but permits 

claims that a seller conforms to a specific forest 

certification standard.’’ Id. at 5. 

368 William Mankin, Comment 534743-00020 at 

1; see also Caroline Pufalt, Comment 534743-00021 

at 1. 

369 Id. 

370 GMA, Green Packaging Workshop 

Presentation at (http://www.ftc.gov/bcp/workshops/ 

packaging/presentations/tullier.pdf). 

371 GMA, Comment 533431-00045 at 8 (citing as 

examples company website sections on 

environmental activities and discussions of 

activities in annual reports or other comparable 

communication vehicles); see also EHS, Comment 

534743-00011 (asserting that companies should 

discuss their programs regarding sustainable 

development in a ‘‘full text document,’’ such as their 

website or in their ‘‘corporate sustainability report’’); 

Georgia-Pacific, Comment 533431-00007 at 8 

(recommending that the FTC discourage the 

unqualified use of ‘‘sustainable’’ for products and 

reserve it for ‘‘providing information about a 

company’s [environmental] indicators and overall 

improvement on those indicators in time’’); PCPC, 

Comment 533431-00075 at 6 (recommending that 

the FTC maintain the Guides’ focus on products, 

packages, and services, not ‘‘general company 

practices’’); SPI, Comment 533431-00036 at 4 

(stating that businesses should be able to explain 

commitments and activities intended to advance 

‘‘sustainability’’). 

372 USGBC, Comment 534743-00027 at 3. 

373 Weyerhaeuser, Comment 533431-00086 at 1. 

374 National Cotton Council (‘‘NCC’’), Comment 

536013-00027 at 4. This study is available at (http:// 

www.ftc.gov/green). The NCC considered the 

following responses to be correct interpretations of 

‘‘sustainable’’: ‘‘minimum impact on environment’’ 

and ‘‘reuse or replenish land, use in future, doesn’t 

deplete.’’ E-mail from Cotton Incorporated (Mar. 11, 

2010). 

375 NCC, Comment 536013-00027 at 52. The 

commenter did not indicate what the Hartman 

Group considers the ‘‘appropriate’’ meaning of 

sustainable. 

376 Cotton Incorporated, Lifestyle Monitor 

Survey, July 2008, available at (http://www.ftc.gov/ 

green). 

Packaging Coalition (‘‘SPC’’), for 

example, stated that currently no 

accepted criteria with supporting test 

methods exists to qualify a package as 

sustainable.361 According to SPC, the 

term ‘‘sustainable,’’ like the terms 

‘‘green’’ or ‘‘environmentally friendly,’’ 

has no intrinsic meaning and confuses 

consumers, even if marketers qualified 

it with text that describes the specific 

attribute(s) that make their product 

sustainable.362

Some commenters noted that, because 

there are no definitive methods for 

measuring sustainability or confirming 

its accomplishment, the Green Guides 

should discourage statements claiming 

achievement of sustainability but permit 

general references to sustainablity goals 

or processes.363 ACC, for example, 

recommended that the Guides clarify 

that ‘‘claims of a product or process 

being ‘sustainable’ are more properly 

characterized as that [the] product or 

process promotes or contributes to 

sustainability and/or sustainable 

outcomes, since sustainability is a 

process or a goal.’’364 Weyerhaeuser 

noted that ISO 14021 prohibits claims of 

achieving sustainability, but that this 

prohibition does not apply to marketer’s 

statements about their ‘‘sustainability 

goals, processes, or aspirations.’’365

Other commenters argued that the 

term ‘‘sustainable’’ can be used properly 

in specific contexts. The Sustainable 

Forestry Initiative (‘‘SFI’’), for example, 

stated that, in forestry, ‘‘sustainable’’ is 

a well-recognized concept that can be 

clearly and specifically defined.366 SFI 

explained that it has a specific forest 

certification standard, the ‘‘SFI 

Standard,’’ which defines ‘‘sustainable 

forestry,’’ sets forth performance 

measures and indicators, and confirms 

compliance with a third-party 

certification audit. Thus, SFI proposed 

that the Guides state that a forest 

certification label may properly claim 

compliance with a specific forest 

certification standard and that a thirdparty audit verifying conformance with 

the standard is adequate 

substantiation.367

In contrast, commenter William 

Mankin argued that sustainable claims 

should not be used in any particular 

context, including forestry.368 In his 

view, it is difficult to attain 

sustainability in forests because forests 

are complex ecological systems. 

Moreover, he asserted that there is no 

widespread consensus on a definition of 

the term ‘‘sustainable,’’ particularly in 

fields involving the management of 

ecological systems and biological 

resources. He noted, for example, that in 

the field of forest management, some 

believe the term applies primarily to the 

ecological attributes of forests, while 

others believe it pertains more to social 

and economic concerns outside 

forests.369

Finally, some commenters observed 

that terms such as ‘‘sustainable’’ may be 

used independently from product 

claims to communicate important 

information about a company or 

organization’s mission and vision. For 

example, GMA referenced the following 

example of a company’s statement about 

its environmental efforts: ‘‘The General 

Mills Sustainability Initiative is a 

company-wide effort to responsibly 

manage the natural resource base our 

business depends on.’’370 GMA argued 

that this is a broad statement about 

corporate philosophy rather than a 

claim made for specific products or 

services, and, therefore, should be 

outside the scope of the Guides.371 In 

addition, USGBC recommended that the 

FTC distinguish between ‘‘statements 

. . . which are used to convey broad 

organizational goals and should not 

require substantiation, and product 

claims, which make assertions about 

specific product attributes.’’372

2. Consumer Perception Evidence 

Commenters submitted limited 

consumer perception evidence 

regarding sustainable claims. 

Weyerhaeuser cited findings from its 

2006 focus groups in four U.S. cities 

indicating that consumers were unable 

to define the term.373 Similarly, the 

National Cotton Council of America 

(‘‘National Cotton Council’’) described 

its own 2006 research, which found that 

only one third of consumers understand 

the term ‘‘sustainable’’ in the context of 

‘‘sustainable agriculture.’’374 It also cited 

a 2007 study by the Hartman Group 

finding that just over half of consumers 

claim any familiarity with the term 

‘‘sustainability,’’ and most cannot define 

it ‘‘appropriately’’ upon probing.375 The 

National Cotton Council also provided 

the Commission with findings from a 

2008 study indicating that 43 percent of 

respondents believed the term 

‘‘sustainable’’ means ‘‘will last longer/ 

good quality.’’376

These results are consistent with the 

Commission’s consumer perception 

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Federal Register / Vol. 75, No. 199 / Friday, October 15, 2010 / Proposed Rules 63583 

377 Although 25 percent of respondents cited a 

specific environmental benefit, these responses 

were distributed over ten different environmental 

benefits (e.g., ‘‘made from recycled materials’’; 

‘‘recyclable’’; ‘‘made with renewable materials’’; 

‘‘made from sustainable resources’’). 

378 In contrast, 27 percent of respondents viewing 

‘‘green,’’ and 15 percent of respondents viewing 

‘‘eco-friendly,’’ believed those claims suggested the 

product is ‘‘good for/helps/benefits the 

environment.’’ 

379 These results were similar for all three tested 

products – kitchen flooring, laundry basket, and 

wrapping paper. 

380 Section 5 of the FTC Act does not require that 

an advertiser have intended to convey a deceptive 

claim. See Chrysler Corp. v. FTC, 561 F.2d 357, 363 

and n.5 (D.C. Cir. 1977); Regina Corp. v. FTC, 322 

F.2d 765, 768 (3d Cir. 1963). Therefore, if, in the 

particular context in which it is presented, a 

sustainable claim implies to consumers that the 

product has non-environmental characteristics, 

marketers must substantiate this implied claim. 

381 Unlike the other tested claims, the term 

‘‘sustainable,’’ on its face, did not suggest that the 

advertised product had environmental attributes. 

382 See generally Riley v. Nat’l Fed’n of the Blind, 

487 U.S. 781, 795-96 (1988); Bolger v. Youngs Drug 

Prod. Corp., 463 U.S. 60, 67 n.14 (1983). 

383 EPA-EPPP, Comment 533431-00038 at 1, 5; 

SDA, Comment 533431-00020 at 3; Seventh 

Generation, Comment 533431-00033 at 3, 5; 

Terressentials, Comment 534743-00012 at 1-2. 

384 See 7 CFR Part 205. 

385 See 7 CFR 301. 

386 See 7 CFR 205.105; 205.601-606. 

387 See 7 CFR 205.100. 

388 See 7 CFR 205.311. 

study. Specifically, in response to an 

open-ended question about the meaning 

of the term ‘‘sustainable,’’ some 

respondents stated the term means 

nothing (13 percent) or that they do not 

know what the term means (eight 

percent). Many others stated that it 

suggests a product is ‘‘strong/durable’’ 

(19 percent) or long-lasting (16 percent). 

Relatively few respondents indicated 

that the term ‘‘sustainable’’ was related 

to any particular environmental 

benefit,377 and only seven percent stated 

that the term suggested a product is 

‘‘good for,’’ ‘‘helps,’’ or ‘‘benefits’’ the 

environment.378

In addition, responses to the closedended questions suggested that 

respondents did not view ‘‘sustainable’’ 

in the same way as a general 

environmental benefit claim. 

Specifically, respondents were less 

likely to believe that unqualified 

sustainable claims suggested specific, 

unstated environmental benefits than 

respondents who viewed ‘‘green’’ and 

‘‘eco-friendly’’ claims. For example, 

while, on average, 52 percent of 

respondents viewing unqualified 

‘‘green’’ claims, and 49 percent of 

respondents viewing ‘‘eco-friendly’’ 

claims, stated that these claims 

suggested that the product had several 

specific environmental attributes, only 

17 percent of respondents viewing 

‘‘sustainable’’ claims stated the product 

had these attributes.379 Moreover, while 

qualifying general environmental claims 

with a specific environmental attribute 

made respondents less likely to believe 

those claims suggested other, unstated 

environmental attributes, qualifying a 

‘‘sustainable’’ claim did not have the 

same effect. Sixteen percent of 

respondents viewing an unqualified 

‘‘sustainable’’ claim saw unstated 

environmental attributes, compared to 

24 percent of respondents who saw such 

attributes when the claim was qualified 

with a specific environmental attribute. 

3. Analysis 

While marketers making sustainable 

claims may intend to convey that a 

product has general and/or specific 

environmental benefits, the consumer 

perception evidence indicates that the 

claim has no single environmental 

meaning to a significant number of 

consumers or that it conveys nonenvironmental characteristics (e.g., 

durable or long-lasting).380 In addition, 

the evidence indicates that consumers 

view sustainable claims differently than 

general environmental benefit claims.381

The Commission, however, is unable 

to provide specific advice on 

sustainable as an environmental 

marketing claim. Unlike other claims we 

tested, the term contains no cue alerting 

consumers that it refers to the 

environment. If used in combination 

with environmental terms and images, 

consumers may perceive ‘‘sustainable’’ 

as an environmental claim. However, 

given the diversity of possible phrases 

and imagery, testing the claim in 

context was not practical. Therefore, the 

Commission lacks a sufficient basis to 

provide meaningful guidance on the use 

of sustainable as an environmental 

marketing term. Marketers, however, are 

responsible for substantiating 

consumers’ understanding of this claim 

in the context of their advertisements. 

Some commenters noted that, to the 

extent the term ‘‘sustainable’’ is used to 

communicate information about a 

company’s environmental philosophy, 

such statements should be outside the 

scope of the Guides. Corporate image 

advertising raises First Amendment 

issues. The degree of constitutional 

protection provided to corporate image 

advertising is determined by the 

category of speech into which that 

expression falls. Therefore, as with all 

types of claims, the Commission 

evaluates each advertisement to 

determine whether it constitutes 

commercial speech. There is no clear 

standard for determining whether 

speech with elements of both 

commercial and non-commercial speech 

will be considered commercial, as 

opposed to non-commercial speech. 

Rather, the Supreme Court has assessed 

the totality of circumstances 

surrounding the expression to 

determine its character, including the 

content of the speech, whether the 

speaker’s motivation is economic, the 

audience to whom and the manner in 

which the speech is directed, and 

whether its commercial and noncommercial component parts are 

inextricably intertwined.382 Because the 

determination of an advertisement’s 

constitutional status must be conducted 

on a case-by-case basis, the issue is not 

appropriate for general guidance. 

B. Organic and Natural Claims 

The current Guides do not specifically 

address claims that products, packages, 

or services are organic or natural. 

Several commenters discussed these 

claims and recommended that the 

Commission provide guidance regarding 

their use.383 Below, the Commission 

discusses other federal agencies’ 

guidance concerning the terms ‘‘organic’’ 

and ‘‘natural,’’ summarizes the relevant 

comments, and analyzes the issues. 

1. Overview – Guidance from Other 

Agencies 

Other government agencies have 

provided guidance on the appropriate 

scope of organic and, to a lesser extent, 

natural claims. 

a. Organic Claims 

The USDA’s National Organic 

Program (‘‘NOP’’) regulates the term 

‘‘organic’’ for agricultural products.384

Agricultural products that are sold, 

labeled, or represented as ‘‘100 percent 

organic,’’ ‘‘organic,’’ or ‘‘made with 

organic ingredients’’ must be produced 

and processed in accordance with NOP 

standards.385 Under these standards, 

organic agricultural products must be 

produced and handled without using 

prohibited methods or synthetic 

substances, except as specifically 

authorized on the National List of 

Allowed and Prohibited Substances.386

Operators who produce or handle such 

products must be certified by an NOPaccredited agent.387 Products that 

qualify as ‘‘100 percent organic’’ or 

‘‘organic’’ may use the USDA’s organic 

seal on their packaging and in their 

advertisements.388

The USDA does not regulate organic 

claims for non-agricultural products. No 

other federal agencies provide specific 

guidance regarding organic claims for 

non-agricultural products. 

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389 USDA Food Safety and Inspection Service, 

Fact Sheet, Meat and Poultry Labeling Terms, 

available at (http://www.fsis.usda.gov/Fact_Sheets/ 

). The fact sheet further notes that the ‘‘label must 

explain the use of the term ‘natural’ (such as - no 

added colorings or artificial ingredients; minimally 

processed).’’ 

390 21 CFR 101.22. 

391 See 58 FR 2407 (Jan. 6, 1993) (FDA declines 

to undertake rulemaking to define ‘‘natural’’); 48 FR 

23270 (May 24, 1983) (FTC terminates rulemaking 

that would have regulated natural food claims). 

392 56 FR 60466 (Nov. 27, 1991). 

393 EPA-EPPP, Comment 533431-00038 at 1, 5; 

SDA, Comment 533431-00020 at 3; Seventh 

Generation, Comment 533431-00033 at 3, 5; 

Terressentials, Comment 534743-00012 at 1-2. 

394 In addition to textiles, one commenter 

asserted that many organic claims for personal care 

products may be misleading. Terressentials, 

Comment 534743-00012 at 1. That commenter 

stated that the USDA has issued a policy statement 

permitting companies selling personal care 

products to apply for organic certification under the 

NOP, but many companies are making organic 

claims for personal care products without obtaining 

certification. Id. The commenter argued that many 

consumers mistakenly believe that such products 

comply with NOP standards. Id. On March 12, 

2010, Consumers Union and the Organic 

Consumers Association filed a petition raising this 

concern and asking the Commission to investigate 

the use of organic claims for personal care products. 

The Commission has placed the petition on the 

record. 

395 Better for Babies, Comment 536013-00033 at 

1; ECOnscious, Comment 536013-00023 at 1-2; 

International Sleep Products Association (‘‘ISPA’’), 

Comment 536013-00015 at 1; OMI, Comment 

536013-00022 at 2-3; Organic Exchange, Comment 

536013-00032 at 3-4; Organic Trade Association 

(‘‘OTA’’), Comment 536013-00016 at 1. 

396 Better for Babies, Comment 536013-00033 at 

1-2; ECOnscious, Comment 536013-00023 at 2; 

OTA, Comment 536013-00016 at 2. 

397 Better for Babies, Comment 536013-00033 at 

1-2; ECOnscious, Comment 536013-00023 at 1; 

OTA, Comment 536013-00016 at 1; Harmony 

Susalla (‘‘Susalla’’), Comment 536013-00028 at 1. 

398 Organic Exchange, Comment 536013-00032 at 

3; Texas Organic Cotton Marketing Cooperative 

(‘‘TOCMC’’), Comment 536013-00014 at 2. 

399 See, e.g., OTA, Comment 536013-00016 at 2. 

The NOP standards apply only to the raw fibers; 

they do not cover the processing and manufacturing 

of textile products. 

400 Better for Babies, Comment 536013-00033 at 

2; ECOnscious, Comment 536013-00023 at 2; OMI, 

Comment 536013-00022 at 4; OTA, Comment 

536013-00016 at 4; Susalla, Comment 536013-00028 

at 1-2; TOCMC, Comment 536013-00014 at 2. One 

commenter recommended that the Guides consider 

GOTS, as well as other processing standards such 

as Oeko-Tex and Bluesign. Organic Exchange, 

Comment 536013-00032 at 4. That commenter 

asserted that third-party organic certification should 

be recognized as substantiation for an organic 

claim. Id. Another commenter, however, expressed 

concern that references to the Oeko-Tex 

certification process may be misleading if the 

marketer does not disclose which Oeko-Tex 

certification process it is using. Susalla, Comment 

536013-00028 at 2. 

401 Oeko-Tex, Comment 536013–00013 at 4. 

402 Id. 

403 OMI, Comment 536013-00022 at 2. 

404 NCC, Comment 536013-00027 at 2. 

405 Organic Exchange, Comment 536013-00032 at 

4; TOCMC, Comment 536013-00014 at 2. The 

Organic Exchange noted that the proof for a 

transitional claim would be that the farm has 

applied for organic certification, an initial on-site 

inspection has been conducted, and the farm has an 

organic system plan which includes the last date of 

use of prohibited substances. Organic Exchange, 

Comment 536013-00032 at 4. 

406 NCC, Comment 536013-00027 at 3. 

407 Id. The NOP regulations require that the 

products labeled as ‘‘100 percent organic’’ or 

‘‘organic’’ must identify the agent that certified the 

products as organic. 7 CFR 205.303. 

408 Id. at 4. 

b. Natural Claims 

To the extent that federal agencies 

have defined, or administered statutes 

defining, ‘‘natural,’’ they have done so 

only in specific contexts. For example, 

the Textile Products Identification Act, 

which is administered by the 

Commission, defines ‘‘natural fiber’’ as 

‘‘any fiber that exists as such in the 

natural state.’’ 15 U.S.C. § 70(c). The 

USDA has defined ‘‘natural’’ meat and 

poultry as ‘‘a product containing no 

artificial ingredient or added color’’ and 

which ‘‘is only minimally processed.’’389

The FDA has defined ‘‘natural flavor or 

natural flavorings’’ as substances 

containing the flavoring constituents 

derived from specified items, such as 

spices, fruits, vegetables, herbs, plant 

materials, meat, seafood, and eggs.390 At 

least in part because of the difficulties 

in developing a definition of ‘‘natural’’ 

that would be appropriate in multiple 

contexts, both the FDA and the FTC 

have previously declined to establish a 

general definition.391

The FDA, however, has employed an 

informal policy regarding the term 

‘‘natural.’’ 

Specifically, it: 

has considered ‘‘natural’’ to mean that 

nothing artificial or synthetic 

(including colors regardless of source) 

is included in, or has been added to, 

the product that would not normally 

be expected to be there. For example, 

the addition of beet juice to lemonade 

to make it pink would preclude the 

product being called ‘‘natural.’’ 392

2. Comments 

Several commenters stated that 

marketers increasingly employ organic 

and natural claims and recommended 

that the Commission provide guidance 

regarding their use.393 Most commenters 

focused on the use of these terms to 

describe textiles.394

a. Organic Claims 

Several commenters recommended 

that the Commission provide guidance 

for organically labeled textiles.395 Some 

suggested that the Commission consult 

with the NOP to clarify guidance for 

organic claims for textiles.396 Many of 

these commenters also recommended 

that the Guides adopt NOP’s production 

standards for organic raw fibers.397

Other commenters suggested that 

marketers of products that contain any 

organic fiber should be able to make 

claims about the amount of organic 

fiber, as long as the organic content has 

been certified by a third party.398

Commenters noted that consumers 

may understand organic claims to refer 

to the manufacturing of the textile and 

not just its fabric content.399 The 

commenters differed, however, in their 

views regarding how to address this 

issue. Several recommended that the 

Guides reference the Global Organic 

Textile Standard (‘‘GOTS’’) for the 

processing and manufacturing of 

organic textile products.400 One 

commenter noted, however, that GOTS 

is a ‘‘process review standard’’ that 

‘‘leaves too many opportunities for 

mistakes and fraud within the dyeing 

and finishing process for textiles.’’401

That commenter stated there is a need 

for analytical verification to determine 

the presence of various chemicals in 

textile products.402 Another commenter 

recommended that marketers disclose a 

complete list of ingredients when they 

make organic claims.403

Several commenters discussed 

whether marketers should be permitted 

to claim that fibers are ‘‘transitional 

organic’’ fibers. The USDA requires that 

to be certified as organic, fibers must be 

grown without chemical fertilizers, 

defoliants, or pesticides for three years. 

The term ‘‘transitional organic’’ refers to 

fiber grown according to these 

guidelines that has not yet met the 

three-year requirement. One commenter 

noted that some retailers are selling 

products containing ‘‘transitional 

cotton,’’ despite the fact that USDA does 

not recognize that term.404 Other 

commenters recommended that the 

Guides permit marketers to make 

‘‘transitional organic’’ claims ‘‘to enable 

the organic fiber marketplace to grow 

while supporting the farmer during the 

three-year transition period.’’405

One commenter indicated that 

numerous retailers appear to be 

marketing products made with 

conventional cotton as organic.406 That 

commenter also reported that retailers 

are making claims that products are 

certified organic but are not providing 

information about the certification.407

The commenter stated that research 

indicates consumers are confused about 

the meaning of organic claims and do 

not trust that products labeled as 

organic are, in fact, organic.408

b. Natural Claims 

Several commenters stated that the 

term ‘‘natural’’ does not have a clear 

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409 ECOnscious, Comment 536013-00023 at 1; 

OTA, Comment 536013-00016 at 2; Oeko-Tex, 

Comment 536013–00013 at 5; Susalla, Comment 

536013-00028 at 1. 

410 OTA, Comment 536013-00016 at 2 (stating 

also that the term ‘‘natural’’ ‘‘has only rarely been 

used as a term of art . . . by any U.S. regulatory 

agency’’). 

411 Susalla, Comment 536013-00028 at 1. 

412 Tetra Pak, Comment 536013-00012 at 3. The 

commenter provided an example of the use of 

natural in context. It stated that claiming a product 

is ‘‘made from trees, a natural and renewable 

resource,’’ would not be deceptive if the product is 

made entirely using that material. 

413 ISPA, Comment 536013-00015 at 1 (proposing 

that the Commission establish objective criteria 

regarding when natural may be used as well as 

documentation required to substantiate the claim); 

SDA, Comment 536013-00018 at 1 (stating that 

natural claims for all products should be specific 

and verifiable); Susalla, Comment 536013-00028 at 

1; Tandus, Comment 536013-00037 at 1; Tetra Pak, 

Comment 536013-00012 at 3. 

414 Better for Babies, Comment 536013-00033 at 

2; NCC, Comment 536013-00027 at 2; OTA, 

Comment 536013-00016 at 2. 

415 TOCMC, Comment 536013-00014 at 1; see 

also OMI, Comment 536013-00022 at 3 (stating that 

if the Commission decides to address natural 

claims, a clear definition is required); Oeko-Tex, 

Comment 536013–00013 at 5 (stating that marketers 

should substantiate natural claims with specific, 

science-based definitions); Susalla, Comment 

536013-00028 at 1 (stating that the Cotton 

Incorporated ‘‘green’’ message is deceptive because 

although U.S. cotton is grown on less land and with 

fewer chemicals, this is not the case with farms 

around the world). 

416 ECOnscious, Comment 536013-00023 at 1. 

417 Todd Copeland, Patagonia, Comment 536013- 

00011 at 1; see also REI, Comment 536013-00031 at 

1 (stating that the Commission should be mindful 

that agriculture can have a significant impact on the 

environment). 

418 NCC Comment 536013-00027 at 4 (citing 2003 

and 2006 studies conducted jointly with the OTA). 

419 Id. 

420 16 CFR 260.5. 

421 16 CFR 260.6(d), 260.7(a). 

422 Although some commenters recommended 

that the Guides endorse ‘‘transitional organic’’ 

claims for fibers, it is unlikely consumers would 

understand the meaning of this term and the issue 

is more appropriately addressed by the NOP. 

423 USDA Labeling of Textiles Under National 

Organic Program (NOP) Regulations Fact Sheet, July 

2008, available at (http://www.ams.usda.gov/ 

AMSv1.0/getfile?dDocName= 

STELPRDC5070818&acct=nopgeninfo). 

424 Cosmetics, body care products, and personal 

care products illustrate this difference. The USDA 

has stated that if these products contain agricultural 

ingredients and can satisfy NOP organic 

production, handling, processing, and labeling 

standards, they are eligible for certification under 

NOP regulations. However, the USDA has stated 

that it does not have authority over the production 

and labeling of such products if they do not contain 

agricultural ingredients or do not make any claim 

that they meet USDA organic standards. USDA 

Cosmetics, Body Care Products and Personal Care 

Products Fact Sheet, April 2008, available at 

(http://www.ams.usda.gov/AMSv1.0/ 

getfile?dDocName=STELPRDC5068442&acct= 

nopgeninfo). 

meaning.409 One commenter explained 

that natural claims for textiles are 

unclear because the products have 

‘‘undergone significant transformation 

from the raw materials’’ they contain.410

Another asserted that the term is 

meaningless and is used to exaggerate 

the environmental benefits of a 

product.411 One commenter, however, 

stated that consumers may understand 

the term given the context in which it 

is used.412

The commenters discussed whether 

the Guides should address the term 

‘‘natural.’’ Several recommended 

generally that the Guides address or 

define the term, but did not specify how 

the Guides should do so.413 Some 

commenters suggested that natural may 

be appropriately used to distinguish 

between textiles derived from 

agricultural products and those derived 

from petrochemicals.414 Another 

commenter recommended that the 

Guides advise marketers to substantiate 

natural claims with third-party 

verification or independent testing.415

Others recommended that the Guides 

not allow the use of the term. For 

example, one commenter stated that 

because the term lacks a clear meaning 

in the textile sector, the Commission 

should not allow marketers to use it.416

Another suggested that the Guides not 

allow natural claims even for fibers 

grown agriculturally because agriculture 

can have a negative impact on the 

environment, such as water and air 

pollution and soil erosion.417

3. Consumer Perception Evidence 

Only one commenter, the National 

Cotton Council, cited consumer 

perception evidence regarding organic 

claims. It asserted that its research 

indicates that consumers are confused 

about these claims, with more than twothirds of respondents either believing, 

or not sure, if organic cotton textiles 

were made from recycled materials or 

contain soy.418 The research also 

indicated that consumers do not trust 

that products labeled as organic are, in 

fact, organic.419

No commenters provided consumer 

perception evidence indicating how 

consumers understand the term 

‘‘natural.’’ 

4. Analysis 

The Commission does not propose 

creating a new section of the Guides to 

address organic and natural claims. The 

explanation for this decision is 

discussed below separately for each 

claim. 

Although the Commission is not 

proposing a new section for these 

claims, the general principles set forth 

in the Guides still apply. Marketers 

must have substantiation for their 

environmental benefit claims, including 

implied claims.420 More specifically, to 

the extent that reasonable consumers 

perceive organic or natural claims as 

general environmental benefit claims or 

comparative claims, the marketer must 

be able to substantiate those claims and 

all other reasonably implied claims, as 

described in Part V.A.4 above.421

a. Organic Claims 

The Commission does not propose 

addressing organic claims for two 

reasons. First, the NOP already 

addresses organic claims for agricultural 

products. Second, for products that are 

outside the NOP’s jurisdiction, the 

current record is insufficient for the 

Commission to provide specific 

guidance. 

i. Organic Claims for Agricultural 

Products 

As described above, the NOP provides 

a comprehensive regulatory framework 

governing organic claims for agricultural 

products. Because of this framework 

and the NOP’s ongoing work in this 

area, the Commission does not want to 

propose duplicative or possibly 

inconsistent advice. Therefore, the 

Commission declines to address organic 

claims covered by NOP standards in the 

Guides.422

For the same reason, the Commission 

does not propose addressing standards 

for processing organic textiles. The 

USDA has indicated that organic claims 

for finished textile products fall within 

its jurisdiction. Following the 

Commission’s Green Building and 

Textiles Workshop, the NOP released a 

new fact sheet, ‘‘Labeling of Textiles 

Under National Organic Program (NOP) 

Regulations,’’ which discussed organic 

claims regarding textiles.423 Therefore, 

rather than proposing duplicative or 

potentially inconsistent advice, 

Commission staff will continue to 

consult with NOP staff to ensure that 

marketers have sufficient guidance 

regarding organic claims for textile 

products. 

ii. Organic Claims for Non-agricultural 

Products 

Although the NOP’s regulatory 

framework governs organic claims for 

agricultural products, it does not apply 

to organic claims for non-agricultural 

products. Therefore, within a particular 

category (e.g., cosmetics), some products 

are covered by NOP standards and other 

products are not, depending on their 

ingredients.424 Yet, both products could 

be advertised as organic. It is unclear 

how consumers understand organic 

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425 As noted above, the FTC and the FDA have 

previously declined to adopt a wide-ranging, formal 

definition of ‘‘natural.’’ 

426 Deception Policy Statement, 103 F.T.C. at 179 

(when evaluating representations under a deception 

analysis, one looks at the complete advertisement 

and formulates opinions ‘‘on the basis of the net 

general impression conveyed by them and not on 

isolated excerpts’’). Depending on the specific 

circumstances, qualifying disclosures may or may 

not cure otherwise deceptive messages. Id. at 180- 

81. 

427 See Part VI.B.1.b, supra. 

428 See Part V.A.4, supra. 

429 Although commenters also referred to 

‘‘renewable resources,’’ the Commission uses the 

term ‘‘materials’’ for consistency. 

430 According to the FTC Staff Internet Surf, 

among renewability claims, the phrases ‘‘renewable 

energy’’ and ‘‘renewable resource’’ occurred most 

frequently. ‘‘Renewable energy’’ occurred in 46 

percent of the 387 web pages containing renewable 

claims, and ‘‘renewable resource’’ occurred in 37 

percent. 

431 FBA, Comment 533431-00015 at 4; GeorgiaPacific, Comment 533431-00007 at 8. 

432 Id. 

433 ACC, Comment 533431-00023 at 11 

(suggesting that a product labeled, for example, 

‘‘uses 20% renewable feedstock’’ would not be 

deceptive). 

434 In fact, only one commenter, the National 

Cotton Council, cited consumer perception 

evidence. NCC, Comment 536013-00027 at 4; See 

Part VI.C.2, infra. 

435 AF&PA, Comment 533431-00083 at 4; see also 

FBA, Comment 533431-00015 at 4. 

436 NCC, Comment 536013-00027 at 1. 

437 NAIMA, Comment 536013-00017 at 14; SaintGobain, Comment 533431-00037 at 13. 

438 See, e.g., Dow, Comment 533431-00010 at 15; 

GreenBlue, Comment 533431-00058 at 7. 

439 NAIMA, Comment 536013-00017 at 14. 

440 Id.; see also FBA, Comment 533431-00015 at 

4; Georgia-Pacific, Comment 533431-00007 at 8. 

claims that describe non-agricultural 

products, and how marketers of those 

products substantiate their claims. 

No commenters submitted consumer 

perception evidence on this issue. The 

Commission, therefore, lacks a basis to 

provide guidance on the use of organic 

claims for products outside NOP’s 

jurisdiction. Accordingly, the 

Commission requests comment on what 

guidance, if any, it should provide 

regarding the use of organic claims to 

describe non-agricultural products. 

b. Natural Claims 

The Commission also does not 

propose addressing natural claims. As 

discussed above, the role of the Guides 

is to prevent consumer deception, so 

definitions for terms such as natural 

must be based on what consumers 

understand those terms to mean. 

However, no commenters provided 

consumer perception evidence 

indicating how consumers understand 

the term ‘‘natural.’’ In addition, natural 

may be used in numerous contexts and 

may convey different meanings 

depending on that context.425 Thus, the 

Commission does not have a basis to 

provide general guidance on the use of 

the term. 

Some commenters recommended that 

the Guides prohibit the use of natural 

claims. In evaluating whether a 

representation is misleading, the 

Commission examines not only the 

claim itself, but the net impression of 

the entire advertisement.426 Thus, in 

order to state that marketers should 

never use the term ‘‘natural,’’ the 

Commission would have to conclude 

that the use of the term is deceptive in 

every context and that no reasonable 

qualification is sufficient to prevent that 

deception. In the absence of evidence 

demonstrating that natural is always 

deceptive and that its use could not be 

qualified to avoid such deception, the 

Commission cannot prohibit marketers 

from using the term. Moreover, as noted 

above, several agencies, including the 

FTC, the FDA, and the USDA, 

acknowledge that natural may be an 

appropriate descriptor in some 

contexts.427

Marketers that are using terms such as 

natural must ensure that they can 

substantiate whatever claims they are 

conveying to reasonable consumers. If 

reasonable consumers could interpret a 

natural claim as representing that a 

product contains no artificial 

ingredients, then the marketer must be 

able to substantiate that fact. Similarly, 

if, in a given context, a natural claim is 

perceived by reasonable consumers as a 

general environmental benefit claim or 

as a comparative claim (e.g., that the 

product is superior to a product with 

synthetic ingredients), then the marketer 

must be able to substantiate that claim 

and all attendant reasonably implied 

claims.428

C. Renewable Materials Claims 

Although the Commission solicited 

comments on whether the Guides 

should be revised generally to include 

renewable claims, the vast majority of 

commenters addressed this term in the 

context of ‘‘renewable materials’’429 or 

‘‘renewable energy.’’430 Therefore, the 

Commission has focused on these two 

types of renewable claims. This part 

discusses comments, relevant consumer 

perception evidence, and the 

Commission’s proposed guidance for 

renewable materials claims. Part VI.D, 

below, addresses renewable energy 

claims. 

1. Comments 

Comments addressed the following 

issues: (1) use of an unqualified 

renewable claim; (2) the elements of a 

renewable materials claim, including 

the time frame under which material 

must be renewed; (3) the quantity of 

renewable materials in a product or 

package marked ‘‘made with renewable 

materials’’; (4) the specific 

substantiation for a renewable materials 

claim; and (5) consumer confusion 

between renewable materials claims and 

biodegradability. 

a. Unqualified Renewable Claims 

Two commenters recommended that 

the Guides clarify that ‘‘the 

characteristic of ‘renewable’ must be 

ascribed to a material or fuel,’’ and not 

to the product or package itself.431

According to these commenters, ‘‘it is 

not proper to ask if [a product] is 

renewable but rather if the material 

composing it in a majority by weight is 

renewable.’’432 A third commenter 

asserted that a product labeled with an 

unqualified renewable claim is 

deceptive because it does not provide 

consumers with information that can be 

used to evaluate the claim.433

b. Elements of Renewable Materials 

Claims 

Most commenters did not offer 

evidence or views on how consumers 

perceive renewable materials claims.434

Rather, they suggested definitions for 

the term. For example, two commenters 

defined renewable materials as 

materials having ‘‘the capacity of being 

regenerated either through natural 

processes or with human assistance, for 

example, through replanting with 

nursery seedlings or natural 

reseeding.’’435 Another stated that 

renewable materials are ‘‘capable of 

being replaced by natural ecological 

cycles or sound management 

practices.’’436

Commenters, however, argued that 

there is an ongoing debate regarding the 

definition of ‘‘renewable’’ and strongly 

urged the Commission to ‘‘approach 

renewability broadly and recognize that 

there is no consensus on what should be 

treated as a renewable resource.’’437

Moreover, although some commenters 

observed that renewable materials 

include biobased products,438 one 

commenter remarked that defining 

renewable materials to include only 

agriculturally based materials is too 

limiting.439 According to this 

commenter, although not agriculturally 

based, sand is a renewable resource 

because deposits are increased daily ‘‘by 

the normal, ongoing geological 

processes that generate new deposits of 

sand in the hundreds of millions of tons 

each year.’’440

Another commenter provided a more 

detailed definition. According to this 

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441 P&G, Comment 533431-00070 at 3. This 

commenter’s remarks also applied to renewable 

energy. 

442 Seventh Generation, Comment 533431-00033 

at 5 (stating the attribute should cover the entire life 

cycle of the source so as to account for any tradeoff); SDA, Comment 533431-00020 at 4. 

443 SPI, Comment 533431-00036 at 6. 

444 Hammer, Comment 533431-00017 at 9. 

445 Weyerhaeuser, Comment 533431-00084 at 6. 

446 Id. 

447 GreenBlue, Comment 533431-00058 at 7. 

448 Id. 

449 CRI, Comment 533431-00026 at 2 (stating that 

the FTC should define applicable time frames but 

not recommending specific time frames); GeorgiaPacific, Comment 533431-00007 at 4 (same); 

Tandus, Comment 536013-00037 at 1 (suggesting, as 

an example, a 10-year time frame). 

450 ACC, Comment 533431-00023 at 11; see also 

SPI, Comment 533431-00036 at 6 (recommending 

that the FTC address situations where less than 100 

percent of contents are ‘‘renewable’’; could take 

approach similar to guidance on products 

containing less than 100 percent recycled content); 

Stepan Company, Comment 533431-00011 at 3. 

451 Steve Mojo, Biodegradable Products Institute 

(‘‘BPI’’), Green Packaging Workshop Presentation at 

(http://www.ftc.gov/bcp/workshops/packaging/ 

presentations/mojo.pdf) (recommending that 

products containing less than 95 percent renewable 

content should state that percentage). 

452 FBA, Comment 533431-00015 at 4; GeorgiaPacific, Comment 533431-00007 at 6, 8. 

453 ACC, Comment 533431-00023 at 11; see also 

Hammer, Comment 533431-00017 at 8 (stating 

marketers should specify the percentage of the total 

product that is renewable). 

454 SPI, Comment 533431-00036 at 6. 

455 CRI, Comment 533431-00026 at 2. 

456 BPI, Green Packaging Workshop Tr. at 90-91; 

Georgia-Pacific, Comment 533431-00007 at 8; ILSR, 

Green Packaging Workshop Tr. at 136-138; Stepan 

Company, Comment 533431-00011 at 2. 

457 ASTM D 6866 ‘‘Standard Test Methods for 

Determining the Biobased Content of Natural Range 

Materials Using Radiocarbon and Isotope Ratio 

Mass Spectometry Analysis.’’ 

458 BPI, Green Packaging Workshop Tr. at 83; 

Georgia-Pacific, Comment 533431-00007 at 8; ILSR, 

Green Packaging Workshop Tr. at 136-138. 

459 BPI, Green Packaging Workshop Tr. at 89 and 

(http://www.ftc.gov/bcp/workshops/packaging/ 

presentations/mojo.pdf). 

460 See APCO, Biodegradable and Compostable 

Survey Topline at 4. 

461 Id.; ILSR, Green Packaging Workshop Tr. at 

137-138. 

462 ILSR, Green Packaging Workshop Tr. at 137- 

138. 

463 BPI, Green Packaging Workshop Tr. at 102- 

103. 

commenter, a material is renewable if: 

(1) the rate of the material’s 

replenishment matches the rate of 

consumption; (2) the sourcing of the 

material does not harm the ecosystem or 

negatively impact ‘‘sustainability’’; 

(3) sourcing of the material reduces 

consumption of non-renewable 

resources; and (4) use of the renewable 

material does not ‘‘significantly increase 

the product’s environmental footprint in 

other relevant indicators (e.g., water, 

waste, energy, etc.).’’441 Along these 

lines, other commenters stated that 

renewability claims may deceive 

consumers if the beneficial attributes 

associated with the renewable materials 

do not account for every environmental 

trade-off, after analyzing the entire life 

cycle of the source.442

Other commenters suggested that 

renewable materials claims may convey 

some broader environmental benefit.443

In particular, one commenter cautioned 

that advertisers should be careful not to 

equate such claims with an overall 

environmental benefit, observing, for 

example, that although ethanol may be 

renewable, its overall environmental 

benefit is debated because of ‘‘the large 

amount of energy needed to create it 

(and the carbon emissions that its 

creation entails).’’444

In contrast, another commenter stated 

that consumers understand renewability 

to refer to only one attribute (i.e., the 

biological properties of a material) and 

do not interpret renewability claims to 

imply that ‘‘there are no other 

environmental issues.’’445 Thus, this 

commenter urged the FTC not to expand 

renewability ‘‘beyond a simple 

biological claim.’’446

Some commenters specifically 

addressed whether and how the Guides 

should address time frames for 

renewability. One commenter, for 

example, suggested that the Guides 

provide that the time frame within 

which a resource is renewed is 

‘‘commensurate with the rate of its use 

and that the appropriate management 

practices are used to ensure a material’s 

renewability.’’447 This commenter 

explained that the term ‘‘begs the 

question ‘On what time scale?’ The 

argument can be made that everything is 

renewable in geologic time or that 

products are renewable if fossilization is 

included in the life cycle.’’448 Others 

similarly asked the FTC to provide 

specific time frames for renewability.449

c. Quantity of Renewable Materials 

Several commenters addressed the 

question of how much of a product 

should be renewable for a marketer to 

make an unqualified ‘‘made with 

renewable materials’’ claim. Some 

recommended that the FTC use its 

current guidance on recyclability and 

recycled content as a model, i.e., a 

renewable claim could be made only if 

an entire product or package, excluding 

minor incidental components, is made 

of renewable materials.450 Otherwise, 

the marketer should qualify the 

renewability claim by stating the 

percentage of renewable materials. 

Other commenters presented slightly 

differing views. The Biodegradable 

Products Institute (‘‘BPI,’’) for example, 

recommended a more specific cut-off, 

asserting that marketers make 

unqualified ‘‘made with renewable 

materials’’ claims only for products that 

have greater than 95 percent nonpetroleum resources.451 In contrast, two 

commenters argued that marketers 

should be able to make an unqualified 

claim if a ‘‘majority’’ of the product 

consists of renewable materials.452

In addition to recommending a 

threshold for an unqualified claim, 

some commenters suggested that 

marketers’ promotional materials should 

provide specific information about the 

renewable material, such as the exact 

percentage of renewable materials in a 

product453 or the source of specific raw 

materials used.454

d. Substantiating Renewable Materials 

Claims 

Some commenters suggested that the 

Guides specifically address the 

procedures needed to substantiate 

renewable and biobased claims. For 

example, one commenter suggested that 

the Guides recommend either selfcertification with publicly available 

documentation using EPA definitions or 

a third-party certification.455 Others 

opined that the Green Guides specify 

the methods used to determine 

biocontent.456 For example, some 

commenters suggested ASTM D 6866457

could be used to accurately determine 

the percentage of the product that comes 

from renewable resources.458

e. Confusion Between Renewable 

Materials Claims and Biodegradability 

Two commenters noted that 

consumers may mistakenly believe that 

products labeled ‘‘made with renewable 

materials’’ are also biodegradable.459

Specifically, BPI cited a study 

conducted by APCO Insight in 2006 

finding that 80 percent of consumers 

believe that a package made from 

natural materials, such as corn-based 

plastics, were more likely to be 

biodegradable than a package made 

from synthetic materials.460 However, 

some biobased products, such as 

products made from sugar cane, contain 

non-degradable polymers.461 Moreover, 

according to the Institute for Local SelfReliance, some of the plastics on the 

market that meet biodegradability 

standards contain no plant matter.462 To 

address this confusion, BPI 

recommended that the Guides make 

clear that naturally based materials may, 

or may not, be compostable or 

biodegradable.463

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464 NCC, Comment 536013-00017 at 4. This 

study, which Cotton Incorporated conducted, is 

available at (http://www.ftc.gov/green). The NCC 

counted the terms ‘‘recycled,’’ ‘‘reused/regrown,’’ 

and ‘‘sustainable for environment’’ as ‘‘correct’’ 

interpretations of the term. E-mail from Cotton 

Incorporated (Mar. 11, 2010). 

465 This and the following numbers are net of the 

non-environmental control claim. 

466 These findings are based on FTC staff’s more 

detailed analysis of the open-ended responses 

rather than Harris’ general findings. 

467 Further, 26 percent stated that ‘‘some’’ of the 

product was made with renewable materials; 13 

percent stated that the claim does not suggest 

anything about how much of the product was made 

with renewable materials; and six percent stated 

that they were not sure. The figures total 102 

percent because of rounding. These percentages 

were derived by combining the responses to all 

claims that included ‘‘made with renewable 

materials’’ (i.e., ‘‘made with renewable materials,’’ 

‘‘green - made with renewable materials,’’ ‘‘ecofriendly - made with renewable materials,’’ and 

‘‘sustainable - made with renewable materials’’). 

468 This proposed guidance can be found in 16 

CFR 260.15. 

469 See, e.g., P&G, Comment 533431-00070 at 3. 

470 The Guides currently provide that unqualified 

claims of recycled content may be made if the entire 

product or package (excluding minor, incidental 

components) is made from recycled content. 16 CFR 

260.7(e). The recyclable section of the current 

Guides also contains similar language: ‘‘Unqualified 

claims of recyclability for a product or package may 

be made if the entire product or package, excluding 

minor incidental components, is recyclable.’’ 16 

CFR 260.7(d). 

2. Consumer Perception Evidence 

As noted above, one commenter, the 

National Cotton Council, described a 

finding from its 2006 telephone/Internet 

study that ‘‘only one third of consumers 

correctly understand the term 

. . . ‘renewable’’’ when referring to 

cotton.464

The Commission’s consumer 

perception study tested respondents’ 

understanding of the phrase ‘‘made with 

renewable materials’’ as this claim 

appeared on three different products – 

wrapping paper, a laundry basket, and 

kitchen flooring. The study results 

indicated that, for all products, 

respondents thought this claim 

definitely or probably suggested that the 

product had other environmental 

attributes. For example, 53 percent 

believed that this phrase suggested that 

the product was recyclable.465 In 

addition, 45 percent believed the phrase 

suggested that the product was made 

from recycled materials. Fewer, but still 

a significant number, believed that a 

‘‘made with renewable materials’’ claim 

suggested that the product was 

biodegradable (28 percent), compostable 

(24 percent), and made with renewable 

energy (23 percent). 

Responses to the open-ended question 

‘‘[w]hat, if anything, does this statement 

suggest or imply to you about the 

product,’’ confirmed these results. For 

all three tested products, a significant 

number said that the product was made 

from recycled materials (31 percent) or 

materials that can be recycled (17 

percent). 

A smaller number of respondents 

answering the open-ended questions 

perceived the claim in the same way as 

marketers appear to intend. Specifically, 

10 percent stated the term implied that 

materials could be replenished, 

replaced, or regrown; 4 percent stated 

the materials were derived from plant 

matter; 0.4 percent suggested the 

materials were non-petroleum based; 

and 0.6 percent indicated the materials 

could be grown quickly.466

The study further tested what a ‘‘made 

with renewable materials’’ claim 

conveyed about the percentage of 

renewable materials in a product. 

Specifically, the study asked 

respondents whether a statement that a 

product is ‘‘made with renewable 

materials’’ suggests that all, most, or 

some of the materials were renewable. 

In response, 37 percent indicated that 

they would interpret the claim to mean 

that ‘‘all’’ of the materials were 

renewable, and an additional 20 percent 

believed that the claim meant ‘‘most.’’467

3. Analysis and Guidance 

To avoid deception, the Commission 

proposes advising marketers to qualify a 

‘‘made with renewable materials’’ claim 

with specific information about the 

material.468 In addition, marketers 

should qualify this claim for products 

containing less than 100 percent 

renewable materials, excluding minor, 

incidental components. The 

Commission does not propose defining 

the term or endorsing any particular test 

to substantiate such claims. 

a. Qualifying Renewable Materials 

Claims 

Rather than providing a technical or 

scientific definition for environmental 

claims, the Guides state what consumers 

understand the claims to mean. The 

results of the Commission’s consumer 

perception study suggest there is a 

disconnect between consumer 

understanding of ‘‘made with renewable 

materials’’ claims and what marketers 

appear to intend to convey. Marketers, 

for example, may intend to 

communicate that a product is made 

from a material that can be replenished 

at the same rate, or faster, than 

consumption.469 Consumers, however, 

likely believe the product has other 

specific environmental benefits, such as 

being made with recycled content, 

recyclable material, and biodegradable 

material. The Commission, therefore, 

proposes advising marketers to qualify 

‘‘made with renewable materials’’ claims 

to avoid misleading consumers. 

While the Commission did not test 

particular qualifiers, it nevertheless 

believes that providing specific 

information about the renewable 

material may correct consumers’ 

misimpressions about this claim. For 

example, providing information 

regarding which renewable materials 

were used, how the materials were 

sourced, and why the materials are 

renewable may align consumer 

perception with what marketers are 

trying to convey. Accordingly, in 

proposed Example 1, the Commission 

states that a ‘‘made with renewable 

materials’’ claim is unlikely to be 

deceptive if the marketer provides 

specific information about the material 

it uses (bamboo), how it sources the 

material (it grows the bamboo), and why 

it is renewable (the bamboo grows at a 

rate comparable or faster than its use). 

Providing this information should 

reduce confusion by providing context 

for the claim. The Commission seeks 

comment on whether providing this 

information, as in proposed Example 1, 

adequately qualifies a ‘‘made with 

renewable materials’’ claim. 

b. Quantity of Renewable Materials 

As noted above, a significant 

percentage of respondents (37 percent) 

indicated that they would interpret a 

‘‘made with renewable materials’’ claim 

to mean that ‘‘all’’ of the materials in a 

product are renewable. Based on this 

result, the Commission proposes that, 

unless the entire product or package, 

excluding minor, incidental 

components, is made from renewable 

materials, marketers need to qualify the 

claim to specify the amount of 

renewable materials in a product or 

package. Thus, as illustrated in 

proposed Example 2, a marketer’s ‘‘made 

with renewable materials’’ claim would 

not be deceptive if it clearly states that 

its product, made from a blend of 50 

percent petroleum-based plastic and 50 

percent plant-based plastic, contains 50 

percent renewable material. This 

proposed guidance is consistent with 

many of the commenters’ views and is 

modeled on the Commission’s current 

recycled content guidance.470

c. Substantiating Renewable Materials 

Claims 

As discussed above, several 

commenters suggested that the 

Commission reference ASTM Method D 

6866 as a means to substantiate ‘‘made 

with renewable material’’ claims. 

Although this protocol may determine 

the biobased content of natural 

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471 See, e.g., BPI, Green Packaging Workshop Tr. 

at 89; ILSR, Green Packaging Workshop Tr. at 137- 

138; SDA, Comment 533431-00020 at 4. 

472 74 FR 38295, 38298 (July 31, 2009). 

473 The USDA defines ‘‘biobased product’’ as a 

‘‘product determined by the Secretary to be a 

commercial or industrial product (other than food 

or feed) that is (A) composed, in whole or in 

significant part, of biological products, including 

renewable domestic agricultural materials and 

forestry materials; or (B) an intermediate ingredient 

or feedstock.’’ Id. 

474 See (http://www.nrel.gov/learning/ 

re_basics.html). 

475 RECs are also known as green certificates, 

green tags, or tradable renewable certificates. Lori 

Bird, National Renewable Energy Laboratory 

(‘‘NREL’’), Carbon Offsets Workshop Tr. at 42. 

476 Although one REC generally represents the 

right to describe one megawatt hour of electricity 

as ‘‘renewable,’’ a REC’s precise attributes continue 

to be a matter of debate. NREL, Carbon Offsets 

Workshop Tr. at 42, 52. Moreover, no single, 

national standard dictates whether a REC also 

represents other environmental attributes that may 

stem from renewable energy generation, such as a 

reduction in air pollution. Id.; Ed Holt, Ed Holt & 

Associates (‘‘Holt’’), Carbon Offsets Workshop Tr. at 

151. 

477 See NREL, Carbon Offsets Workshop Tr. at 45; 

NREL, Carbon Offsets Workshop Presentation at 

(http://www.ftc.gov/bcp/workshops/carbonoffsets/ 

presentations/lbird.pdf); CRS, Comment 533254- 

00049 at 3; Lori Bird, Claire Kreycik, and Barry 

Friedman, Green Power Marketing in the United 

States: A Status Report, National Renewable Energy 

Laboratory (Sept. 2009) (‘‘NREL Green Power 

Marketing Report’’), available at (http:// 

www.nrel.gov/docs/fy09osti/46581.pdf) at 14. 

478 Businesses and organizations purchase nearly 

100 percent of these unbundled RECs. See 

Renewable Energy Marketers Association (‘‘REMA’’), 

Comment 533254-00028 at 2; NREL Green Power 

Marketing Report at 18. 

479 CRS, Comment 533254-00049 at 2-3. 

Renewable energy is not sold in all areas of the 

country. However, in the U.S., more than 50 percent 

of consumers can purchase green power directly 

from their utility or electricity provider. NREL, 

Carbon Offsets Workshop Presentation at (http:// 

www.ftc.gov/bcp/workshops/carbonoffsets/ 

presentations/lbird.pdf). 

480 CRS, Comment 533254-00049 at 3; NREL, 

Carbon Offsets Workshop Tr. at 45; NREL Green 

Power Marketing Report at 14. 

481 NREL, Carbon Offsets Workshop Tr. at 48-49. 

Businesses also may purchase RECs to facilitate 

compliance with regulatory requirements. The 

FTC’s focus is not on these sales. 

482 See, e.g., Rob Schasel, PepsiCo, Carbon Offsets 

Workshop Tr. at 207. 

483 P&G, Comment 533431-00070 at 3 (stating that 

an energy source is renewable if the rate of 

replenishment matches the rate of its consumption, 

the sourcing and use of the energy does not harm 

Continued 

materials, it does not necessarily 

substantiate all claims that consumers 

reasonably infer. Therefore, the 

Commission declines to reference it in 

the Guides as acceptable substantiation 

for renewable materials claims. 

Proposed Example 3 illustrates this 

point. In this example, although the 

marketer used test results to determine 

that its product consists entirely of 

biological material, the marketer cannot 

substantiate other consumer 

interpretations of its unqualified ‘‘made 

with renewable materials’’ claim, 

including that the product is recyclable, 

made with recycled content, or 

biodegradable. 

d. Biobased Claims 

Some commenters used the term 

‘‘biobased’’ interchangeably with the 

phrase ‘‘renewable material.’’471 It is not 

clear whether consumers interpret this 

claim in the same way as ‘‘renewable.’’ 

At this time, the Commission does not 

propose addressing biobased claims in 

the Guides because the USDA is 

conducting its own consumer 

perception study of biobased claims as 

part of its proposed voluntary labeling 

program for biobased products.472 In 

developing this program, USDA has 

sought public comment on a proposed 

‘‘USDA Certified Biobased Product’’ 

logo, which will include a statement 

that identifies the biobased473 content of 

the product and that indicates whether 

the label applies to the product or 

packaging (e.g., ‘‘Product: 57% biobased; 

Packaging: 90% biobased’’). The USDA 

proposes that marketers determine 

biobased content by testing products 

pursuant to the ASTM Method D 6866 

standard. Given USDA’s ongoing work 

in this area, the Commission does not 

want to propose duplicative or 

potentially inconsistent advice. 

Therefore, the Commission has decided 

not to address this issue in the Guides 

at this time. 

D. Renewable Energy Claims 

This section discusses claims about 

the sale of renewable energy as well as 

claims that a product is ‘‘made with 

renewable energy.’’ Specifically, the 

Commission discusses the ways 

renewable energy is sold, comments 

addressing renewable energy claims, 

relevant consumer perception research, 

and the Commission’s analysis of the 

issues. 

1. Overview 

Renewable energy generally refers to 

electricity derived from constantly 

replenished sources (e.g., wind 

power).474 Once renewable electricity is 

introduced into the grid, it is physically 

indistinguishable from electricity 

generated from conventional sources. 

Consumers, therefore, cannot determine 

for themselves the source of the 

electricity flowing into their homes. 

Because electricity transactions can be 

tracked, however, retail customers can 

‘‘buy’’ renewable power by either: 

(1) purchasing renewable energy 

certificates (RECs) 475; or (2) purchasing 

renewable power through contracts with 

their utility. 

Under the REC method, a renewable 

electricity generator splits its output 

into two components: (1) the electricity 

itself; and (2) certificates representing 

the renewable attributes of that 

electricity.476 Specifically, generators 

that produce renewable electricity sell 

their electricity at market prices for 

conventionally produced power and 

then sell the renewable attributes of that 

electricity through separate 

certificates.477 Organizations purchase 

RECs to characterize all or a portion of 

their electricity usage as ‘‘renewable’’ by 

matching the certificates with the 

conventionally produced electricity 

they normally purchase.478

Under the contract method, 

consumers and businesses purchase 

renewable energy through traditional 

electricity contracts with their local 

utility or power provider.479 Energy sold 

through these ‘‘green power pricing’’ 

programs generally costs more than 

conventional energy. Utilities (or other 

electricity retailers) can obtain the 

renewable energy they sell through 

different means. Some generate 

renewable energy themselves and sell it 

to their customers. Others contract with 

renewable energy generators to purchase 

electricity, which utilities then sell to 

their customers. Additionally, some 

utilities purchase RECs to match their 

own conventionally produced energy so 

that they can characterize the energy 

they sell as renewable.480

Many businesses tout their renewable 

energy purchases to market their 

products or services.481 For example, a 

clothing company may claim that its 

garments are ‘‘made with renewable 

energy,’’ or a snack food manufacturer 

may claim that it ‘‘buys green energy 

credits to match 100% of the electricity 

needed to produce’’ its snacks.482 By 

purchasing such products, consumers 

can indirectly support renewable 

energy. 

2. Comments 

The comments discussing renewable 

energy focused on three issues: (1) the 

definition of ‘‘renewable energy’’ and 

guidance on ‘‘made with renewable 

energy’’ claims; (2) whether utilities 

must disclose that the renewable energy 

they sell is based on RECs; and (3) the 

types of practices and advertising claims 

that should be considered ‘‘double 

counting.’’ 

a. Defining Renewable Energy and 

Interpreting Renewable Energy Claims 

Several comments discussed the 

definition and scope of the term 

‘‘renewable energy.’’ One recommended 

that the Commission clearly state what 

qualifies as renewable energy.483

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the ecosystem or increase the product’s 

environmental footprint, and the sourcing of the 

energy reduces consumption of non-renewable 

resources). Another commenter stated that a federal 

Executive Order defines renewable energy, and 

others noted that many states have different 

definitions of what constitutes renewable energy. 

Dow, Comment 533431-00010 at 13; see also Edison 

Electric Institute, Comment 533254-00055 at 4-5; 

Exelon Corp., Comment 533431-00059 at 5. 

484 Tandus, Comment 536013-00037 at 1. 

485 CRS, Comment 533254-00049 at 4. 

486 Edison Electric Institute, Comment 533254- 

00055 at 4-5. 

487 Cameron Brooks, Renewable Choice Energy 

(‘‘Renewable Choice’’), Carbon Offsets Workshop Tr. 

at 214 (encouraging the FTC to provide guidance on 

making more precise claims); CRS, Comment 

533254-00049 at 4-14; SDA, Comment 534743- 

00028 at 2 (suggesting that the Commission provide 

guidance on which environmentally beneficial 

attributes are associated with the use of renewable 

energy, such as reductions in greenhouse gases); 

David A. Zonana, California Department of Justice, 

Carbon Offsets Workshop Tr. at 219 (stating that it 

generally is easier for marketers to substantiate 

more precise marketing claims). 

488 CRS, Comment 533254-00049 at 4-14. 

489 Id. at 10; CRS, Comment 534743-00009 at 2. 

490 CRS, Comment 533254-00049 at 10; CRS, 

Comment 533431-00061 at 6; Jennifer Martin, CRS 

(‘‘CRS’’), Carbon Offsets Workshop Tr. at 194-195; 

Sharp Electronics Corporation, Solar Energy 

Solutions Group (‘‘Sharp Electronics’’), Comment 

533254-00036 at 1; see also Dow, Comment 533431- 

00010 at 13 (recommending that marketers specify 

the percentage of renewable energy used). 

491 Id. 

492 See,e.g., Ecology Center, Comment 533254- 

00020 at 1; Sol Metz (‘‘Metz’’), Comment 533254- 

00023 at 1; REMA, Comment 533254-00028 at 3-4; 

James Svensson (‘‘Svensson’’), Comment 533254- 

00021 at 1; Weyerhaeuser, Comment 533431-00084 

at 13. 

493 Ecology Center, Comment 533254-00020 at 1; 

Metz, Comment 533254-00023 at 1; Svensson, 

Comment 533254-00021 at 1. 

494 Climate Clean, Comment 533254-00039 at 3 

n.7 (stating that claims such as ‘‘made with green 

energy’’ are ‘‘misleading insofar as they may imply 

on-site generation, not the market purchase 

(possibly well out of market) of environmental 

attributes of renewable energy production’’). 

Another commenter stated that marketers advertise 

products as ‘‘produced with wind power’’ and 

questioned whether consumers understand that the 

wind power may be generated in a distant location. 

The commenter stated that many marketers include 

disclaimers that explain they use power from the 

grid. Weyerhaeuser, Comment 533431-00084 at 3. 

495 REMA, Comment 533254-00028 at 3-4; see 

also CRS, Comment 533254-00049 at 2-3 

(explaining that in neither case ‘‘is the consumer 

directly receiving actual electrons generated by the 

renewable energy facility, which is physically 

impossible’’). 

496 A marketer, for example, may knowingly sell 

the same REC multiple times. 

497 Matthew Clouse, EPA Green Power 

Partnership (‘‘Green Power Partnership’’), Carbon 

Offsets Workshop Tr. at 221; CRS, Comment 

533254-00049 at 6; REMA, Comment 533254-00028 

at 10; Sharp Electronics, Comment 533254-00036 at 

1-2. 

498 CRS, Comment 533254-00049 at 6; REMA, 

Comment 533254-00028 at 10; Sharp Electronics, 

Comment 533254-00036 at 1-2. 

499 In addition to these responses, 11 percent 

stated that the product was made with renewable 

energy without elaborating on what the term 

‘‘renewable energy’’ meant. Respondents provided 

numerous other unique answers in response to this 

open-ended question. All reported findings are 

based on FTC staff’s more detailed analysis of 

responses rather than Harris’ general findings. 

500 Because consumers could choose one or more 

claims, or no claims, the responses provided do not 

add up to 100 percent. 

Another asserted consumers may not 

have a clear understanding of the 

term,484 but a different commenter 

believed that consumers understand it 

to mean energy generated from sources 

other than fossil fuels or nuclear 

power.485 Another commenter stated 

that there is no uniform definition of 

‘‘renewable energy.’’486

Some commenters recommended that 

the Commission include guidance about 

the scope of renewable energy claims 

and the possible need to qualify 

them.487 One commenter provided 

examples of potentially broad, implied 

claims and suggested that the 

Commission include these examples in 

the Guides.488 For instance, consumers 

may interpret a ‘‘made with renewable 

energy’’ claim on a product label as 

applying to the product, its packaging, 

and the label itself.489 Several 

commenters also cautioned that 

consumers may interpret the claim 

‘‘manufactured with renewable energy’’ 

to mean that the product was made 

entirely with renewable energy.490 In 

these commenters’ view, marketers 

should not make an unqualified ‘‘made 

with renewable energy’’ claim if less 

than 100 percent of the electricity used 

comes from renewable sources.491

b. REC Disclosures 

Some commenters discussed whether 

utilities or other electricity retailers 

must disclose that the renewable energy 

they sell is based on their purchase of 

RECs.492 Some argued that sellers 

should disclose this fact so consumers 

will not believe mistakenly that the 

utility either generated the renewable 

power itself or purchased it through 

electricity contracts.493 As one 

commenter explained, consumers may 

believe that the renewable energy they 

purchase is generated in their 

geographic location, when, in fact, the 

utility may have purchased RECs 

generated in a distant location.494 These 

commenters, therefore, argued that 

without a disclosure, consumers might 

be misled. The Renewable Energy 

Marketers Association disagreed, 

maintaining that a disclosure about the 

source of the renewable energy is 

unnecessary because there is no 

difference in the environmental benefits 

of REC-based renewable energy and 

contract-based renewable energy.495

c. Double Counting 

Commenters also discussed the 

problem of ‘‘double counting.’’ Double 

counting generally occurs when an 

entity sells the same REC to more than 

one purchaser or when multiple parties 

make claims based on the same REC. 

Although some instances of double 

counting are straightforward,496 the 

commenters discussed more subtle 

variations. Some argued a company 

should not generate renewable power 

onsite (e.g., by using solar panels on 

store roofs), sell RECs based on the 

renewable attributes of that same power, 

and then advertise that they use 

renewable energy (e.g., ‘‘our stores are 

100% solar-powered’’).497 In their view, 

such practices constitute double 

counting and are misleading. Some 

commenters suggested, however, that it 

would not constitute double counting if 

those companies simply claimed that 

they ‘‘host’’ a renewable energy 

facility.498

3. Consumer Perception Evidence 

No commenters submitted research 

exploring how consumers perceive 

renewable energy claims. The 

Commission’s study, however, explored 

respondents’ understanding of such 

claims. 

The study asked respondents to 

describe, in their own words, what a 

‘‘made with renewable energy’’ claim 

means. In response to this open-ended 

question, 16 percent referenced a 

particular form of renewable energy, 

such as solar or wind power. Five 

percent stated that the product was 

made with energy that is not derived 

from fossil fuels; four percent stated the 

product was made with ‘‘alternative’’ or 

‘‘clean’’ energy; and one percent stated 

that it was made with energy that is 

readily replenished. Seventeen percent 

did not understand the claim’s meaning 

or stated that it meant nothing to them, 

and another 17 percent stated that the 

product was made from recycled 

materials.499

Through a closed-ended question, the 

study also explored what claims 

respondents thought were implied by a 

product advertised as ‘‘made with 

renewable energy.’’ The study provided 

seven possible claims from which 

respondents could choose. In response, 

28 percent thought the claim implied 

the product was made with renewable 

materials, 21 percent thought the 

product was made from recycled 

materials, and 18 percent thought the 

product was recyclable.500

In addition, the study asked 

respondents whether a statement that a 

product is ‘‘made with renewable 

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501 Further, 23 percent stated that ‘‘some’’ of the 

product was made with renewable energy, 18 

percent stated that the claim does not suggest 

anything about how much of the product was made 

with renewable energy, and seven percent stated 

that they were not sure. The provided figures total 

101 percent because of rounding. These percentages 

were derived by combining the responses to all 

claims that included ‘‘made with renewable energy’’ 

(i.e., ‘‘made with renewable energy,’’ ‘‘green - made 

with renewable energy,’’ ‘‘eco-friendly - made with 

renewable energy,’’ and ‘‘sustainable - made with 

renewable energy’’). 

502 The survey asked half of the respondents 

about solar power facilities and the other half about 

wind power facilities. Because there were no 

meaningful differences between the responses of 

these two groups, we discuss the combined results. 

503 The results also were calculated using one 

response (that the company hosts a meeting in its 

plant) as a control claim to roughly adjust for 

guessing. The results net of the control are: 73 

percent of respondents stated there is a solar/wind 

power facility on the company’s premises, and 50 

percent stated that solar/wind power is used in 

making the company’s products. 

504 This proposed guidance can be found in 16 

CFR 260.14. 

505 Responding to open-ended questions, 16 

percent of respondents explained the term by 

referring to a particular energy source (e.g., the sun, 

wind, biomass, and other non-fossil fuel sources), 

and five percent expressly stated that the energy 

was not derived from fossil fuels. 

506 The open-ended responses are consistent with 

these closed-ended results. 

507 For example, as discussed in the general 

environmental benefit claims section (Part V.A, 

supra), the Commission’s consumer perception 

study indicated that 27 percent of respondents 

interpreted the claims ‘‘green’’ and ‘‘eco-friendly’’ as 

suggesting a product has no negative environmental 

impact. Based in part on these findings, the 

Commission proposes to advise marketers to qualify 

general environmental benefit claims. 

508 In addition, 17 percent stated that most of the 

product was made with renewable energy. 

509 16 CFR 260.7(e). 

energy’’ suggests that all, most, or some 

of the product was made with 

renewable energy. The largest group, 36 

percent, indicated that they interpret the 

claim as meaning that ‘‘all’’ of the 

product was made with renewable 

energy and 17 percent believed that 

‘‘most’’ of it was made with renewable 

energy.501

Finally, the study asked about a 

product advertisement that included the 

statement ‘‘our manufacturing plant 

hosts a solar [or wind] power 

facility.’’502 The study asked which, if 

any, of the following three claims were 

implied by the statement: (1) there is a 

solar/wind power facility on the 

company’s premises; (2) solar/wind 

power is used in making the company’s 

products; and (3) the company hosts a 

solar/wind power conference meeting in 

its manufacturing plants. Respondents 

could choose more than one answer. 

Eighty-five percent stated that there is a 

solar/wind power facility on the 

company’s premises, 62 percent stated 

that solar/wind power is used in making 

the company’s products, and 12 percent 

stated that the company hosts a solar/ 

wind power conference meeting in its 

manufacturing plants.503

4. Analysis and Guidance 

Based on the record, the Commission 

proposes new guidance concerning 

renewable energy claims.504 The 

following discusses this guidance and 

addresses the issues raised by 

commenters concerning consumer 

interpretation of renewable energy 

claims, REC disclosures, geographic 

location disclosures, and claims that 

could constitute ‘‘double counting.’’ 

a. Consumer Interpretation of 

Renewable Energy Claims 

The commenters and the 

Commission’s study raise three main 

issues related to consumer 

interpretation of renewable energy 

claims: (1) the meaning of ‘‘renewable 

energy’’; (2) claims implied by 

renewable energy advertisements; and 

(3) potentially overbroad renewable 

energy claims. 

First, the term ‘‘renewable energy’’ has 

an emerging meaning. Industry does not 

appear to have a uniform definition of 

the term, and commenters discussed 

different energy sources that they 

believe are ‘‘renewable.’’ There appears 

to be a consensus, however, that 

renewable energy excludes fossil fuels. 

The results of the Commission’s study 

suggests that a significant minority of 

consumers have a similar, general 

understanding of renewable energy; 

specifically, it is not derived from fossil 

fuels.505 Based on both this information 

and the comments, the Commission 

proposes advising marketers not to 

make an unqualified ‘‘made with 

renewable energy’’ claim if an item was 

manufactured with energy produced 

using fossil fuels. Given the available 

information, however, the Commission 

does not propose further guidance on 

which specific energy sources 

consumers consider to be renewable. 

The second issue is the extent to 

which renewable energy claims require 

qualification. The Commission’s study 

suggests that some consumers believe 

that a ‘‘made with renewable energy’’ 

claim implies that the advertised 

product is also made with renewable 

materials (28 percent of respondents) or 

made from recycled materials (21 

percent).506 The cause of these 

consumers’ confusion is not entirely 

apparent. Although some renewable 

energy is itself made from renewable or 

recycled materials (e.g., biomass), not all 

products made with renewable energy 

are necessarily made with such 

materials. 

When a claim misleads a small, but 

significant, minority of consumers, the 

Commission generally advises marketers 

to qualify the claim to prevent 

deception.507 Although the Commission 

did not test any specific qualifiers, it 

proposes that marketers disclose the 

type or source of the renewable energy 

(e.g., solar or wind). Similar to the 

proposal to qualify renewable materials 

claims, discussed above, the 

Commission believes that providing 

context for renewable energy claims 

may help reduce consumers’ 

misperception. If consumers are armed 

with a better understanding of 

renewable energy, they may be less 

likely to draw inferences that are 

unrelated to the claim. 

The Commission does not propose 

advising marketers to qualify renewable 

energy claims by specifically stating that 

the product does not contain renewable 

or recycled materials. Qualifiers such as 

‘‘not made with renewable materials’’ or 

‘‘does not contain recycled materials’’ 

bear no relation to a renewable energy 

claim and, therefore, could cause more 

consumer confusion than the qualifier 

alleviates. The Commission, however, 

requests comment on whether 

specifying the source of the renewable 

energy adequately qualifies a ‘‘made 

with renewable energy’’ claim. 

Third, as with other environmental 

claims, marketers should be cautious 

that they do not overstate their 

renewable energy claims. For example, 

a vehicle manufacturer should not state 

that its product is made with renewable 

energy when the claim applies only to 

certain components of the vehicle. 

Section 260.6(b) of the Guides already 

advises marketers to specify whether the 

advertised environmental attributes 

apply to the product, its packaging, or 

only a component of the product or 

packaging. This guidance applies 

equally to renewable energy claims. The 

Commission proposes including new 

guidance about whether consumers 

interpret a ‘‘made with renewable 

energy’’ claim to mean the product was 

made entirely using renewable energy. 

In the Commission’s research, 36 

percent of respondents interpreted a 

‘‘made with renewable energy’’ claim to 

mean that ‘‘all’’ of the product was made 

with renewable energy.508 This result is 

consistent with several commenters’ 

views, as well as the Commission’s 

existing guidance regarding ‘‘made with 

recycled content’’ claims.509

The Commission does not have 

evidence, however, regarding exactly 

how consumers interpret the term ‘‘all’’ 

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510 The Commission also applies the ‘‘all or 

virtually all’’ standard to unqualified ‘‘Made in 

USA’’ claims. See Enforcement Policy Statement on 

U.S. Origin Claims, 62 FR 63760, 63755 (Dec. 2, 

1997). 

511 CRS, Comment 533254-00049 at 5-6; see also 

Holt, Carbon Offsets Workshop Tr. at 153; NREL, 

Carbon Offsets Workshop Tr. at 51. Because REC 

sales often involve multiple transactions and a large 

number of entities, businesses must track RECs 

through the market. Therefore, inadequate 

accounting or tracking practices can lead marketers 

to sell multiple certificates based on the same 

renewable energy activity. Accurate, well-designed 

registries or tracking systems can help to minimize 

this problem. For example, several regional tracking 

systems, covering more than 30 states, use metered 

generation data for the issuance of RECs. CRS, 

Comment 533254-00049 at 3 n.3; REMA, Comment 

533254-00028 at 4-5; see also Holt, Carbon Offsets 

Workshop Tr. at 153; NREL, Carbon Offsets 

Workshop Tr. at 51. 

512 As discussed in note 503, using a control 

claim yields similar results. Net of control, 50 

percent of respondents believe the company used 

solar/wind power to make its products. 

513 These projects occur around the globe, often 

in locations removed from offset purchasers. The 

location of an offset project is immaterial to its 

impact on greenhouse gas levels because these gases 

circulate evenly throughout the earth’s atmosphere. 

Katherine Hamilton, Ecosystem Marketplace 

(‘‘Ecosystem’’), Carbon Offsets Workshop Tr. at 31. 

in this context or how broadly 

consumers interpret ‘‘made with 

renewable energy’’ claims. For example, 

for a product advertised as ‘‘made with 

renewable energy,’’ it is unclear whether 

consumers would expect that all 

product components are made with 

renewable energy. This ambiguity, 

however, does not prevent the 

Commission from providing some 

guidance. Specifically, based on its 

research, the commenters’ views, and its 

own judgment, the Commission 

proposes advising marketers not to use 

unqualified ‘‘made with renewable 

energy’’ claims unless all, or virtually 

all, of the significant manufacturing 

processes used to make the product are 

powered by renewable energy or 

powered by conventionally produced 

energy that is offset by RECs.510 For 

example, it would be deceptive for a toy 

manufacturer to make an unqualified 

renewable energy claim if it did not 

purchase renewable energy to power all 

of the significant processes used to 

manufactured its toys. Determining 

whether that same manufacturer could 

make an unqualified claim if its plant 

were powered with renewable energy, 

but its delivery trucks used fossil fuels, 

would require further consumer 

perception research. The Commission 

requests comment on this proposed 

advice and seeks any additional 

consumer perception evidence 

addressing this issue. 

b. REC Disclosures 

The Commission also considered 

whether specific disclosures are 

necessary for renewable energy claims 

based on the purchase of RECs, rather 

than the purchase through contracts. As 

discussed earlier, the commenters held 

different opinions on this issue. Some 

argued that sellers must inform 

consumers when their renewable energy 

sales are based on RECs because 

consumers would otherwise assume that 

the marketer either generated the 

renewable energy itself or purchased it 

through contracts. The commenters, 

however, did not submit consumer 

perception evidence to support this 

view. 

Even assuming that consumers 

thought renewable energy claims were 

based on contractual purchases (rather 

than REC purchases), there is no reason 

to believe that this fact would be 

material to consumers. No evidence on 

the record suggests that a contract-based 

system more reliably tracks renewable 

energy than a well-designed REC-based 

system. Accordingly, the Commission 

does not have a sufficient basis to advise 

marketers to disclose that their 

renewable energy claims are based on 

RECs. 

c. Geographic Location of Renewable 

Energy Generation 

Regardless of whether the marketer 

purchases renewable energy through 

RECs or contracts, the energy may have 

been generated in a distant geographic 

location. It is unclear whether 

consumers interpret renewable energy 

claims to mean that the energy was 

generated in their location and, thus, 

yields local benefits. As discussed 

above, marketers must have 

substantiation for all reasonably implied 

interpretations of their claims. 

Therefore, marketers must evaluate the 

net impression of their advertisements 

and, when needed, obtain consumer 

research to determine if their 

advertisements imply that the 

renewable energy was generated locally. 

If a particular advertisement implies 

that renewable energy yields local 

benefits, marketers should inform 

consumers that this is not the case to 

prevent deception. Because the need for 

such disclosures will depend on the 

specific advertisement in question, the 

Commission does not propose adding 

guidance on this issue to the Guides. 

Nevertheless, marketers should be 

mindful of this issue to avoid 

misleading consumers. 

d. Double Counting 

Double counting can occur as a result 

of fraud or inadequate accounting, as 

well as in more subtle ways.511

Fraudulent activity, such as knowingly 

selling the same offset to multiple 

purchasers, is best addressed through 

law enforcement actions rather than 

Commission guidance. The 

Commission’s Guides are intended for 

those marketers seeking to comply with 

the law. 

Aside from outright fraud, the written 

comments provide examples of more 

subtle methods of double counting. 

Guidance for these types of practices 

may be useful. The Commission agrees 

with commenters that companies 

should not sell RECs for renewable 

energy they generate onsite (e.g., by 

using solar panels on store roofs) and 

then tout their renewable energy 

facilities or equipment in advertising 

(e.g., ‘‘this store is 100% solar 

powered’’). By selling RECs, the 

company has transferred the right to 

characterize its electricity as renewable. 

Therefore, even if the company 

technically uses the electricity from its 

onsite solar panels, an advertising claim 

about the renewable aspects of this 

energy is misleading. The Commission, 

therefore, proposes to include this 

example in the Guides. 

Some commenters suggested 

companies in these circumstances 

should be able to claim that they ‘‘host 

a renewable energy facility.’’ The 

Commission’s study, therefore, tested 

this claim, and 62 percent of 

respondents stated that the company 

used solar/wind power to make its 

products.512 The Commission, therefore, 

proposes advising marketers that the 

phrase ‘‘hosts a renewable energy 

facility’’ is likely to mislead consumers 

if, in fact, the company has sold its 

rights to claim credit for the renewable 

energy. 

E. Carbon Offset Claims 

Carbon offsets, relatively new 

products in the green marketing field, 

received significant attention in the 

comments. To provide background on 

the consumer protection issues involved 

with these products, the following 

describes offsets and the advertising 

claims associated with them. It then 

discusses the comments addressing this 

topic, relevant consumer perception 

research, and the Commission’s analysis 

of the issues. 

1. Overview 

Carbon offsets are credits or 

certificates that represent reductions in 

greenhouse gas (‘‘GHG’’) emissions. 

These reductions stem from different 

types of projects, such as methane 

capture from landfills or livestock 

feedlots, tree planting, and industrial 

gas destruction.513 Marketers quantify 

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514 No uniform definition for either term appears 

to exist. See, e.g., Exelon Corp., Comment 533431- 

00059 at 4 (stating that there is no clear consensus 

as to what the term ‘‘carbon footprint’’ includes); 

Carbon Claims and the Trade Practices Act, 

Australian Competition & Consumer Commission 

(June 2008) at 7, available at (http:// 

www.accc.gov.au/content/index.phtml/itemId/ 

833279) (discussing ‘‘carbon neutrality’’). ‘‘Carbon 

footprint’’ generally refers to the net greenhouse gas 

emissions caused by the activities of an individual, 

business, or organization. ‘‘Carbon neutral’’ 

generally describes an entity whose greenhouse gas 

emissions net to zero. 

515 Ecosystem, Carbon Offsets Workshop Tr. at 

37-38 and (http://www.ftc.gov/bcp/workshops/ 

carbonoffsets/presentations/khamilton.pdf). The 

vast majority (80 percent) of offset purchasers in the 

international voluntary market are businesses. 

Across the globe, offset sales generally occur in two 

types of markets: (1) those that facilitate compliance 

with regulatory targets (so-called ‘‘mandatory’’ or 

‘‘compliance’’ markets); and (2) those unrelated to 

existing regulatory programs (so-called ‘‘voluntary’’ 

markets). This discussion addresses offsets in the 

voluntary market. 

516 Matthew Kotchen, University of California, 

Santa Barbara, Carbon Offsets Workshop Tr. at 92. 

517 See generally EcoSecurities, Comment 

533254-00044 at 4-5. Although many businesses 

purchase offsets to make advertising claims for 

individual products, others do so to prepare for 

future mandatory carbon markets, to help their 

corporate image more generally, or to promote 

corporate responsibility efforts. See, e.g., 

Ecosystem, Carbon Offsets Workshop Tr. at 40-41; 

Mario Teisl, University of Maine, Carbon Offsets 

Workshop Tr. at 175. The Commission has not 

identified any data addressing the volume of 

purchases attributable to these various activities. 

518 See Climate Clean, Comment 533254-00039 at 

5; Consumers Union, Comment 533254-00026 at 1- 

2; NativeEnergy, Inc., Comment 533431-00044 at 2; 

State of New Jersey, Department of Environmental 

Protection (‘‘NJ DEP’’), Comment 533431-00082 at 1; 

Pacific Gas & Electric Company, Comment 533254- 

00041 at 1; Seventh Generation, Comment 533431- 

00033 at 6. 

519 See, e.g., Urvashi Rangan, Consumers Union 

(‘‘Consumers Union’’), Carbon Offsets Workshop Tr. 

at 210 (‘‘I think clarification of terminology out 

there is really important. Things like carbon-free, 

carbon neutral, carbon offset, carbon negative . . . are 

really confusing to consumers.’’); International 

Paper, Comment 533431-00006 at 2; Kim Sheehan, 

Comment 533431-00004 at 1. 

520 NJ DEP, Comment 533431-00082 at 2. 

521 Consumers Union, Comment 533254-00026 at 

2 (recommending disclosure of offset type); 

Hydrodec North America LLC (‘‘Hydrodec’’), 

Comment 533254-00046 at 8 (same); NJ DEP, 

Comment 533431-00082 at 2 (recommending 

disclosure of the name, owner, and location of the 

project that produced the emission reductions, 

among other things); 3M Company, Comment 

533431-00027 at 2 (recommending disclosure of the 

source of and methodology used to calculate the 

carbon offsets); see also Carbon Offset Providers 

Coalition (‘‘COPC’’), Comment 533254-00032 at 4 

(recommending that the FTC promote ‘‘clarity and 

transparency’’). 

522 Consumers Union, Comment 533254-00026 at 

1-2. Consumers Union also recommended that 

sellers disclose the benefits that the product yields 

beyond the baseline impacts (i.e., the emissions that 

would have occurred in the absence of the offset 

project). 

523 See, e.g., Constellation Energy Group, Inc. 

(‘‘Constellation’’), Comment 533254-00029 at 4-5; 

Hydrodec, Comment 533254-00046 at 5; Wal-Mart 

Stores, Inc. (‘‘Wal-Mart’’), Comment 533254-00040 

at 3-4. 

524 Exelon Corp., Comment 533431-00059 at 2. 

525 Wal-Mart, Comment 533254-00040 at 3-4. 

526 Constellation, Comment 533254-00029 at 2. 

527 See Exelon Corp., Comment 533431-00059 at 

2; Wal-Mart, Comment 533254-00040 at 3-4. 

528 See, e.g., Edison Electric Institute, Comment 

533254-00055 at 10; Michael Gillenwater 

(‘‘Gillenwater’’), Comment 533254-00005 at 3; The 

Fertilizer Institute, Comment 533254-00052 at 4. 

One commenter, however, noted that such sellers 

cannot show that the offset purchase caused an 

emission reduction. NativeEnergy, Inc., Comment 

533431-00044 at 3 (‘‘As one cannot change the past, 

it is impossible for the purchase of a previously 

generated reduction to be the cause of that 

reduction.’’) 

529 NativeEnergy, Inc., Comment 533431-00044 at 

3. 

530 Edison Electric Institute, Comment 533254- 

00055 at 17 (stating that as long as the offset is 

substantiated, timing should not be an issue). 

their GHG reductions and then sell 

carbon offsets to purchasers seeking to 

meet their own environmental goals by 

reducing their ‘‘carbon footprints’’ or by 

striving to make themselves ‘‘carbon 

neutral.’’514 Offset purchasers include 

individual consumers, businesses, 

government agencies, and non-profit 

organizations.515

Individual consumers, for example, 

generally purchase offsets to reduce, 

balance, or neutralize greenhouse gas 

emissions associated with their own 

activities, such as automobile use or 

airplane travel. In these instances, offset 

sellers advertise their products directly 

to individual consumers. For example, 

some online travel vendors have 

partnered with offset sellers to allow 

consumers to buy offsets when they 

purchase airplane tickets.516

Businesses purchase carbon offsets to 

balance the emissions associated with 

the production, sale, or use of their own 

products and services. They often tout 

these offsets in advertisements for their 

products and services. For example, a 

potato chip seller that purchases offsets 

to match its GHG emissions might 

advertise its chips as ‘‘carbon neutral.’’ 

Marketers make similar claims for a 

wide range of products and services, 

from clothing to paper goods.517

2. Comments 

a. Defining Carbon Offsets and 

Requiring Disclosures 

The comments differed in the degree 

and extent the FTC should be involved 

in regulating carbon offset marketing. 

Several commenters called on the 

Commission to provide detailed 

guidance or create a regulatory 

framework for offsets.518 For example, 

some suggested that the FTC define or 

clarify the meaning of certain terms, 

such as ‘‘carbon neutral.’’519 Another 

asked the FTC to establish a list of 

allowable offset projects and mandate 

uniform calculation methods for 

emission reductions.520 Others urged 

mandatory disclosures about the type of 

activity (e.g., reforestation) that forms 

the basis for carbon offsets.521 In 

addition, Consumers Union called for 

an annual FTC statement about the 

amount of global carbon production to 

help consumers compare the offset 

impacts in a global context.522

While some commenters called for 

regulatory requirements, others urged 

the FTC to avoid setting standards.523

For example, Exelon Corporation stated 

that the FTC lacks the technical 

expertise and authority to set standards 

in this area.524 Walmart indicated that, 

while the FTC should insist that 

marketers have a reasonable basis for 

their claims, the agency should not 

mandate one reasonable approach over 

another.525 In addition, Constellation 

Energy Group noted that, given the 

relative youth of these products, 

‘‘market-driven solutions are being and 

will continue to be developed to address 

consumer confidence or credibility 

concerns.’’526 Finally, commenters 

warned that any FTC action in this area 

might negatively impact ongoing policy 

debates at the federal and state levels.527

b. Timing of Emission Reductions 

The comments also raised concerns 

about the timing of the actual GHG 

emission reductions associated with 

carbon offsets. Some reductions occur 

prior to the sale of offsets and others 

occur after. For example, offsets 

generated from methane capture 

activities are typically sold after the 

methane reductions occur. Other sellers, 

however, use offset proceeds to fund 

future projects (such as constructing 

renewable energy facilities) that are 

expected to create emission reductions 

at a later date. 

Many commenters stated that offsets 

should be based on prior emission 

reductions because those reductions are 

verifiable.528 The commenters 

disagreed, however, about the propriety 

of selling offsets based on future GHG 

reductions. One commenter preferred 

such offsets because, in its view, 

consumers are concerned with future 

GHG emissions.529 Another suggested 

that consumers implicitly understand 

that reductions from activities such as 

tree-planting do not happen 

immediately but rather ‘‘incrementally 

and over a longer time horizon.’’530

Others disagreed and argued that 

consumers do not necessarily 

understand that emission reductions 

funded by their purchase have not yet 

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531 See, e.g., AgRefresh, Comment 533254-00004 

at 1, 6; TerraPass, Inc. (‘‘TerraPass’’), Comment 

533254-00045 at 5. 

532 AgRefresh, Comment 533254-00004 at 1, 6. 

533 Climate Clean, Comment 533254-00039 at 5; 

see Wiley Barbour, Environmental Resources Trust, 

Inc. (‘‘ERT’’), Carbon Offsets Workshop Tr. at 216 

(‘‘There are real differences of opinion about 

whether or not a forestry project, which is going to 

take fifty years to grow, . . . should be counted as a 

reduction today.’’). 

534 Offset Quality Initiative, Comment 533254- 

00047 at 8. 

535 AgRefresh, Comment 533254-00004 at 6. 

536 For example, one commenter stated that 

‘‘[s]elling emission offsets before they are created is 

not inherently problematic . . . . However, forward 

crediting should be done transparently and 

provisions made for failure of delivery.’’ 

Gillenwater, Comment 533254-00005 at 3. 

537 Some commenters noted that it is difficult to 

define additionality, and FTC staff have set forth 

merely one variation (examining whether the 

emission reduction project would have gone 

forward without the additional revenue stream 

associated with the sale of carbon offsets). Another 

variation examines whether the project causes 

emissions beyond what is required by law or 

beyond ‘‘business as usual.’’ See, e.g., Anadarko 

Petroleum Corp. (‘‘Anadarko’’), Comment 533254- 

00058 at 4. The Commission discusses these 

differences in more detail below. 

538 See, e.g., Anadarko, Comment 533254-00058 

at 3; Derik Broekhoff, World Resources Institute 

(‘‘WRI’’), Carbon Offsets Workshop Tr. at 123-125, 

165; COPC, Comment 533254-00032 at 5; CRS, 

Comment 533254-00049 at 11; EcoSecurities, 

Comment 533254-00044 at 4; Gillenwater, 

Comment 533254-00005 at 3; Hydrodec, Comment 

533254-00046 at 6; Offset Quality Initiative, 

Comment 533254-00047 at 4; TerraPass, Comment 

533254-00045 at 5. 

539 See, e.g., TerraPass, Comment 533254-0045 at 

5. 

540 See Anadarko, Comment 533254-00058 at 4; 

EcoSecurities, Comment 533254-00044 at 9; 

Gillenwater, Comment 533254-00006 at 8; Green 

Power Partnership, Carbon Offsets Workshop Tr. at 

241-242; Holt, Carbon Offsets Workshop Tr. at 154- 

155; Hydrodec, Comment 533254-00046 at 4-5; 

Maurice LeFranc, EPA (‘‘LeFranc EPA’’), Carbon 

Offsets Workshop Tr. at 143; Offset Quality 

Initiative, Comment 533254-00047 at 4-8; WRI, 

Carbon OffsetsWorkshop Tr. at 123-125; Mark 

Trexler, Derik Broekoff, and Laura Kosloff, A 

Statistically-Driven Approach to Offset-Based GHG 

Additionality Determinations: What Can We Learn?, 

Sustainable Development Law and Policy (Winter 

2006) at 30, available at (http://conserveonline.org/ 

workspaces/climate.change/carbonmarkets/ 

AdditionalityOffset). 

541 The EPA Climate Leaders program 

recommends this approach for use in evaluating 

offsets by its partners. See (http://www.epa.gov/ 

stateply/); LeFranc EPA, Carbon Offsets Workshop 

Tr. at 143. 

542 COPC, Comment 533254-00032 at 3. Another 

commenter explained that the investment test is 

subjective because there are no industry-specific 

metrics on whether an internal rate of return is 

‘‘‘attractive’ or not to project developers.’’ Anadarko, 

Comment 533254-00058 at 6. 

543 COPC, Comment 533254-00032 at 3. A 

workshop participant also noted that it may be 

difficult to determine which source of funding 

‘‘made a difference.’’ Green Power Partnership, 

Carbon Offsets Workshop Tr. at 242. 

544 Anadarko, Comment 533254-00058 at 6. 

545 Hydrodec, Comment 533254-00046 at 5. 

546 Anadarko, Comment 533431-00032 at 4; 

Renewable Choice, Carbon Offsets Workshop Tr. at 

262; see also LeFranc EPA, Carbon Offsets 

Workshop Tr. at 143. 

547 ERT, Carbon Offsets Workshop Tr. at 254-256; 

see also Anja Kollmus, Stockholm Environmental 

occurred.531 In one commenter’s view, 

sellers should disclose prominently that 

the reductions caused by their products 

will occur in the future.532

In addition to concerns about 

consumer understanding, many 

commenters raised concerns about the 

certainty of future projects.533 With 

forestry-based offsets, for instance, 

events such as fire or insect infestation 

may damage trees and release carbon 

stored within them.534 Because of these 

uncertainties, one commenter stated 

that offsets for unverified emission 

reductions should not be allowed.535

Others suggested that offset sellers take 

steps to account for such uncertainties, 

such as using accounting practices to 

reflect the risks associated with future 

projects.536

c. Substantiating Carbon Offset Claims – 

Additionality 

One of the most contentious issues 

surrounding the substantiation of 

carbon offset claims is the concept of 

‘‘additionality,’’ specifically, whether 

reductions associated with a carbon 

offset product would have occurred 

without the offset sale.537 Both the 

workshop participants and comments 

discussed this issue at length, with most 

agreeing that offset sellers have a duty 

to demonstrate that their underlying 

GHG reduction projects are 

additional.538 Without such a showing, 

the underlying projects do not produce 

meaningful GHG reductions.539

The concept of additionality raises 

difficult technical and policy 

challenges, which have generated 

substantial disagreement among experts. 

In particular, the commenters did not 

form a consensus regarding which tests 

industry members should use to 

determine whether an offset project is 

additional. In fact, according to various 

commenters, industry members rely on 

numerous, different tests, alone or in 

combination. Examples of these various 

tests include:540

∑ Regulatory/Legal Test: Addresses 

whether the project, and, thus, the 

emissions reductions, are required by 

law. If they are required by law, the 

project is not additional. 

∑ Investment Test: Addresses whether 

the revenue from carbon offset sales was 

a decisive factor in the project’s 

implementation or whether the project 

would have yielded a lower than 

acceptable rate of return without offset 

revenue. If either is true, the project is 

additional. 

∑ Common Practice Test: Addresses 

whether the project involves widelyused technologies and is merely a 

‘‘business as usual’’ project. If so, the 

project is not additional. 

∑ Technology Test: Addresses 

whether the project involves a 

technology that is not considered 

‘‘business as usual’’ or whether the 

primary benefit yielded by the 

technology is a reduction in emissions. 

If so, the project is additional. 

∑ Timing Test: Addresses whether the 

project began after a specific date. This 

test eliminates older projects which 

could not have been implemented with 

the intent of reducing emissions. If the 

project began after the established date, 

it is additional. 

∑ Barriers Test: Addresses whether 

there are barriers, such as local 

opposition or lack of knowledge, that 

must be overcome to implement the 

project. If the project succeeds in 

overcoming unusual barriers such as 

these, the project is additional. 

∑ Performance Test: Addresses 

whether the project achieves a level of 

performance (e.g., an emission rate, a 

technology standard, or a practice 

standard) with respect to emission 

reductions and/or removals that is 

significantly better than ‘‘business as 

usual.’’ If so, the project is additional.541

The commenters variously criticized 

these tests as vague, subjective, and 

likely to yield undesirable outcomes. 

For example, one commenter noted that 

the investment test requires ‘‘subjective 

analyses of the intent of the project 

developer or the sufficiency of a 

project’s investment return . . . [and 

ignores] market realities as they relate to 

capital formation and the tenure of 

commercial arrangements which make 

private activity projects feasible.’’542

Such subjective criteria encourage 

‘‘gaming’’ and usually result in increased 

costs.543 Another criticized the common 

practice, technology, and barrier tests 

because they all involve ‘‘complex 

counter-factual questions of what 

constitutes the baseline scenario . . . and 

how the offset project differs.’’544 Still 

another noted that the timing test may 

create incentives to delay much-needed 

investments until an offset system is 

established.545 Some workshop 

participants, however, supported the 

regulatory additionality test because it 

offers an objective standard (i.e., if the 

law requires the project, one cannot sell 

offsets from it).546 But even this 

approach drew criticism when one 

panelist explained that multiple 

regulations can apply to a project, 

making it difficult to determine whether 

regulations actually require a particular 

technology investment.547

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Institute (‘‘SEI’’), Carbon Offsets Workshop Tr. at 

258-259. 

548 AF&PA, Comment 533254-00042 at 2-3; 

Anadarko, Comment 533254-00058 at 2; Clean Air 

Conservancy, Comment 533254-00027 at 1; COPC, 

Comment 533254-00032 at 3; Edison Electric 

Institute, Comment 533254-00055 at 11-13; Exelon 

Corp., Comment 533431-00059 at 2-3; Hydrodec, 

Comment 533254-00046 at 5-6; REMA, Comment 

533254-00028 at 12; The Fertilizer Institute, 

Comment 533254-00052 at 5; Weyerhaeuser, 

Comment 533431-00084 at 2. 

549 Anadarko, Comment 533254-00058 at 2. 

550 Hydrodec, Comment 533254-00046 at 6. 

551 Carbon Offsets Workshop participant Edward 

Holt provided an overview of the issues involved 

in using RECs to form the basis for carbon offset 

claims. Holt, Carbon Offsets Workshop Tr. at 150- 

158. 

552 Adam Stern, TerraPass (‘‘TerraPass’’), Carbon 

Offsets Workshop Tr. at 227-228 (stating that there 

are reputable organizations such as ‘‘the World 

Resources Institute, The Union of Concerned 

Scientists, Natural Resources Defense Council, that 

have all indicated a support for using RECs as an 

offset value’’); Eric Carlson, Carbonfund.org, Carbon 

Offsets Workshop Tr. at 229-230; CRS, Comment 

533254-0049 at 9; Edison Electric Institute, 

Comment 533254-00055 at 6. 

553 Carbonfund.org, Carbon OffsetsWorkshop Tr. 

at 229-230; CRS, Comment 533254-00049 at 4; 

Edison Electric Institute, Comment 533254-00055 at 

6. One commenter argued that it ‘‘is universally 

accepted that the generation of renewable energy 

can displace and reduce the emission of carbon and 

other greenhouse gases’’ from conventional 

facilities. The commenter further stated that the 

practice is recognized by international offset 

programs including the United Nations’ Clean 

Development Mechanism of the Kyoto Protocol, the 

Gold Standard, and the Voluntary Carbon Standard. 

CRS, Comment 533254-00049 at 11. Some of these 

commenters, however, cautioned that RECs do not 

always equate to reduced emissions from 

conventional facilities, and offset sellers must 

demonstrate that the reduced emissions are 

additional. COPC, Comment 533254-00032 at 2-3; 

CRS, Comment 533254-0049 at 3-7; Offset Quality 

Initiative, Comment 533254-00047 at 11. 

554 Climate Clean, Comments 533254-00038 at 1- 

3, 533254-00039 at 3 (stating that use of RECs as 

offsets is a ‘‘uniquely American practice’’); 

Gillenwater, Comment 533254-00006 at 15-16; 

533254-00007 at 5 (stating that there is an incentive 

to rely on RECs as a source of offsets because RECs 

are generally less expensive than most offset 

projects); SEI, Carbon Offsets Workshop Tr. at 226- 

227. 

555 Gillenwater, Comment 533254-00006 at 16 

(stating that ‘‘the effect of an input of electricity 

from a renewable generator on other grid-connected 

generators [e.g., fossil fuel plants] is difficult to 

quantify’’); EcoSecurities, Comment 533254-00044 

at 3-4. 

556 Id. 

557 EcoSecurities, Comment 533254-00044 at 4 

(stating that RECs ‘‘are subject to no . . . additionality 

testing requirements, and require no reference to 

whether or not the REC market was instrumental in 

the development of the project’’); Climate Clean, 

Comments 533254-00038 at 2, 533254-00039 at 2- 

3; see also NREL, Carbon Offsets Workshop Tr. at 

75-76 (explaining the concept of additionality for 

RECs). 

558 Id. 

559 ERT, Carbon Offsets Workshop Tr. at 225 

(‘‘[W]hat you’re saying is [that] you own a reduction 

on someone else’s property.’’); see also Gillenwater, 

Comment 533254-00006 at 14. 

560 Holt, Carbon Offsets Workshop Tr. at 151-152. 

In contrast, other emission reduction projects have 

a clear owner who can take credit for the reductions 

or sell the reductions. 

561 EcoSecurities, Comment 533254-00044 at 10. 

For example, a renewable energy generator might 

claim that its RECs represent a reduction in 

traditional electricity generation and a 

corresponding reduction in emissions. However, 

these reductions actually occur at the fossil fuel 

plant. The fossil fuel plant could argue that, 

because it produced less energy, it caused the 

reduction in emissions. The fossil fuel plant could 

sell offsets that represent the same emission 

reduction as the RECs. 

562 Vermont Office of Attorney General (‘‘Vermont 

AG’’), Comment 553254-00051 at 5 (writing on 

behalf of the Offices of the Attorneys General of 

Arkansas, California, Connecticut, Delaware, 

Illinois, Maine, Mississippi, New Hampshire, 

Oklahoma, and Vermont). 

563 See Georgia-Pacific, Comment 553254-00059 

at 2 (‘‘We do not know of specific, credible surveys 

or even market sensing studies on this matter.’’); 

Rebecca Tushnet, Georgetown University Law 

Center, Carbon Offsets Workshop Tr. at 82-83 

(stating that companies’ consumer research is likely 

to be part of a marketing initiative and, therefore, 

proprietary). In considering potential consumer 

research, some noted that consumer interpretation 

of claims may change over time. Id.; Alan Levy, 

FDA, Carbon Offsets Workshop Tr. at 80; GE AES 

Greenhouse Gas Services LLC, Comment 533254- 

00043 at 2. 

Many commenters urged the FTC to 

refrain from issuing guidelines that 

address additionality. They suggested 

that a combination of legislative action, 

efforts by agencies with greater 

expertise, and evolving market practices 

are the best means for addressing these 

questions.548 For example, one 

commenter warned that the ‘‘FTC risks 

becoming entangled in highly complex 

policy issues at the core of ongoing 

discussions concerning the design of 

market-based mechanisms addressing 

climate change.’’549 Another argued that, 

because pending legislation would 

assign the role of addressing 

additionality standards to agencies other 

than the FTC, it would be neither 

‘‘appropriate nor productive for the FTC 

to take a stance on the issue’’ at this 

time.550

d. Substantiating Carbon Offset Claims – 

Use of RECs 

Some carbon offsets are based on the 

purchase of renewable energy 

certificates (‘‘RECs’’). The practice of 

using RECs to create carbon offsets is 

controversial and garnered significant 

attention at the workshop and in the 

comments.551

Some workshop panelists and 

commenters approved of using RECs to 

substantiate offset claims.552 In their 

view, renewable energy generation 

(represented by RECs) creates emission 

reductions by causing fossil fuel-fired 

facilities to produce less energy and, 

therefore, fewer emissions.553

Others argued that RECs should not 

be used for offsets because the two are 

distinctive commodities and conflating 

them could mislead consumers.554 They 

provided three main arguments to 

support their position. First, they argued 

that there is little or no evidence that 

renewable energy generation always 

reduces traditional power generation555

because the actual emission reductions 

associated with grid power vary 

considerably across the United States, 

and there are no uniform standards for 

calculating the emissions displaced by 

renewable energy.556 Second, even if 

such displacement occurs, sellers 

cannot prove that renewable energy 

generation, and any associated GHG 

emission reductions, are additional.557

Some argued that RECs merely 

subsidize existing projects and do not 

contribute sufficiently to a project’s 

income stream to create a market for 

new renewable energy generation.558

Third, the critics questioned whether 

the renewable energy generators can 

take credit for the emission reductions 

that occur at fossil fuel-fired 

facilities.559 There is currently no 

mechanism to establish who owns such 

emission reductions – the renewable 

energy generator or the fossil fuel-fired 

generator.560 Therefore, the comments 

raised concerns about double counting 

if both generators take credit for the 

same emission reduction.561

3. Consumer Perception Evidence 

Some commenters emphasized the 

need to research consumer 

understanding of specific terms and 

claims in carbon offset 

advertisements.562 The commenters, 

however, did not identify existing 

consumer perception data in this 

area.563 Therefore, the Commission 

tested certain issues related to carbon 

offset claims in its consumer research. 

The study split respondents into two 

groups – asking one about carbon offsets 

and the other about carbon neutrality. 

The research explored respondents’ 

understanding of these terms, whether 

respondents had seen advertisements 

for carbon offsets or for products or 

services described as carbon neutral, 

and whether they had ever purchased 

such items. 

A significant percentage of 

respondents demonstrated a general 

understanding of carbon offsets when 

they chose from a list of possible 

descriptions, but a much smaller 

percentage could describe a carbon 

offset in their own words. Specifically, 

in response to a closed-ended question, 

41 percent identified a carbon offset as 

‘‘a way of reducing carbon dioxide and 

other greenhouse gases,’’ while 35 

percent stated that they were not sure 

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564 The other responses were: a way of 

eliminating all pollution that results from using a 

product or service; a method for replacing scarce 

carbon resources; a way of reducing chemical 

pollutants in water; a way of making carbonated 

beverages; a laundry additive for removing pencil 

and ink stains from clothing; and none of the above. 

565 These figures are based on FTC staff’s more 

detailed analysis of responses rather than Harris’ 

general findings. Examples of responses that 

indicate an understanding of the term include: ‘‘A 

way to reduce greenhouse gases’’; ‘‘Trees are planted 

or other environmental restoration is performed to 

supposedly make up for environmental damage 

being caused by other activities’’; and ‘‘A credit on 

the amount of carbon used in manufacturing 

process.’’ 

566 Of those few who purchased an offset, 21 

percent stated that they were offsetting airline 

travel, 15 percent automobile travel, and 15 percent 

lighting. 

567 The other responses were: no pollution was 

generated in making the product; carbon resources 

were not used in making the product; water 

pollutants were reduced to improve water quality; 

clothing that resists pencil and ink stains; soft 

drinks that were made without carbonation; and 

none of the above. 

568 These findings are based on FTC staff’s more 

detailed analysis of responses rather than Harris’ 

general findings. Examples of responses that 

indicate an understanding of the term ‘‘carbon 

neutral’’ include: ‘‘The amount of carbon created in 

producing the product is offset by other means that 

eliminates carbon’’; ‘‘doesn’t have a negative impact 

in terms of carbon emissions’’; and ‘‘does not leave 

a carbon footprint.’’ 

569 As mentioned above, the study asked 

approximately half of all respondents about carbon 

offsets (and the remainder about carbon neutral 

claims). Of the 1,879 respondents who answered 

carbon offset questions, 770 generally understood 

carbon offsets. Only these 770 respondents 

answered questions about the timing of emission 

reductions. 

570 Additionally, 16 percent stated that they 

neither agreed or disagreed and 11 percent stated 

that they were not sure. 

571 Additionally, 16 percent stated that they 

neither agreed or disagreed and 12 percent stated 

they were not sure. These figures add up to 99 

percent because of rounding. 

572 This proposed guidance can be found in 16 

CFR 260.5. 

what a carbon offset was.564 When 

asked to describe a carbon offset in their 

own words, only 18 percent provided an 

answer which communicated a general 

understanding of the term, while 58 

percent stated that they did not know or 

provided no response to the question.565

A much smaller number (11 percent) 

reported seeing an advertisement for an 

offset and only two percent actually 

recalled purchasing a carbon offset.566

In a closed-ended question, the study 

also asked respondents to identify what 

it meant to be ‘‘carbon neutral.’’ Thirtynine percent of respondents answered 

that greenhouse gases, such as carbon 

dioxide, were offset. Twenty-five 

percent were not sure what ‘‘carbon 

neutral’’ meant.567 When asked to 

describe the term in their own words, 22 

percent provided an answer that 

demonstrated a general understanding 

of the term, and 35 percent stated that 

they did not know or provided no 

answer.568 Similar to the carbon offset 

results, few respondents (only 10 

percent) recalled seeing an 

advertisement for carbon neutral 

products or services, and only four 

percent stated that they had purchased 

a product or service at least partly 

because it was advertised or labeled 

carbon neutral. 

For the subset of respondents who 

generally understood that carbon offsets 

were a way to reduce greenhouse gas 

emissions, the study attempted to gauge 

their understanding about the timing of 

greenhouse gas emission reductions.569

The study asked each respondent to 

consider an airline advertisement that 

states: ‘‘For every flight you take with 

us, we will buy carbon offsets to offset 

the greenhouse gas emissions from your 

flight.’’ The study explained that the 

offsets in question involve capturing 

and destroying methane. It then 

described two methane projects that 

both result in reduced emissions, but in 

different timeframes. The study 

attempted to gauge respondents’ views 

on whether the timing of the emission 

reductions was material. For each 

project, the study asked whether 

respondents agreed or disagreed with 

the airline’s statement that it offsets the 

emissions from their flight. When the 

methane was to be captured ‘‘within the 

next few months,’’ 53 percent of 

respondents agreed that the airline was 

offsetting emissions from the flight and 

20 percent disagreed.570 But when the 

equipment used to capture methane had 

not yet been installed and the methane 

was not to be captured ‘‘for several 

years,’’ only 28 percent of respondents 

agreed that the airline was offsetting 

emissions from the flight, while 43 

percent disagreed.571

4. Analysis and Guidance 

The Commission proposes to provide 

only limited guidance regarding carbon 

offsets in the Guides.572 Although many 

commenters urged the Commission to 

provide detailed advice or extensive 

regulatory requirements, such an 

approach is not appropriate at this time 

given the extent of the Commission’s 

authority, the available consumer 

perception evidence, and the ongoing 

policy debates among experts in the 

field concerning the appropriate tests to 

substantiate offset claims. However, it is 

appropriate for the Commission to 

provide advice to marketers regarding 

some aspects of carbon offset marketing 

and we discuss these below. Regardless 

of the Guides’ scope, the Commission 

may take law enforcement action to stop 

deceptive practices involving carbon 

offset marketing pursuant to Section 5 of 

the FTC Act. For example, clearly 

deceptive activity, such as knowingly 

selling the same offset to multiple 

purchasers, does not need to be 

addressed in the Guides and, indeed, is 

best addressed through enforcement 

actions. 

a. Consumer Interpretation of Claims 

and Disclosures 

Some commenters asked the 

Commission to define terms such as 

carbon offsets and require sellers to 

disclose to consumers certain 

characteristics of their offsets. As 

previously discussed, under the FTC 

Act, the Commission has authority to 

combat deceptive and unfair practices. 

It does not have authority to develop 

environmental policies or regulations. 

Accordingly, the Commission does not 

create definitions or standards for 

environmental terms. Rather, it provides 

guidance to marketers on how 

consumers understand those terms. The 

Commission’s study suggests that some 

consumers have a general 

understanding of carbon offsets and 

products advertised as carbon neutral, 

but few reported seeing advertisements 

for such items, and even fewer have 

actually purchased them. The study did 

not identify any pattern of confusion 

among respondents about what a carbon 

offset is that would warrant any general 

FTC guidance. The Commission, 

therefore, does not believe a discussion 

about consumer understanding of these 

terms in the Guides would be useful to 

marketers. In addition, any such 

guidance could become obsolete quickly 

given this rapidly evolving market. 

Marketers also requested more 

detailed FTC guidance with respect to 

the identification of allowable offset 

projects and the establishment of 

uniform methodologies for calculating 

emission reductions. Such guidance, 

however, would place the Commission 

in the role of setting environmental 

policy, which is outside the agency’s 

authority. The Commission, therefore, 

declines to do so. 

Except as described below, the 

Commission does not propose advising 

offset sellers to make certain 

disclosures, such as the type of projects 

funded by the offset sales. Although 

such disclosures may provide helpful 

information to potential purchasers, 

there is no evidence on the record to 

conclude that they are necessary to 

prevent consumer deception. This 

distinction is critical under FTC law. 

Pursuant to the FTC Act, advertisers 

must disclose information that is 

necessary to prevent consumers from 

being misled – not all information that 

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573 FTC Deception Policy Statement, 103 F.T.C. 

at 165. 574 In some contexts, sellers may nevertheless 

wish to disclose this information to differentiate 

their offsets. 575 As discussed above, this finding is based on 

the subset of respondents who generally understood 

carbon offsets. Despite the smaller sample size, the 

Commission relies on these findings because they 

provide the only available consumer perception 

evidence upon which to base guidance. 

576 The study asked respondents about an 

airline’s statement that it would buy carbon offsets 

to offset the greenhouse gas emissions from their 

flight. 

577 Additionally, the Commission proposes 

advising offset marketers that they should not state 

or imply that their products have already reduced 

emissions or will do so in the near future if, in fact, 

the reductions will occur at a significantly later 

date. 

578 See Anadarko, Comment 533254-00058 at 5 

(stating that it is reasonable for consumers to 

assume, absent any disclaimers to the contrary, that 

the GHG reduction was not taken to meet regulatory 

requirements). 

579 The Commission notes that this guidance 

represents its interpretation of the FTC Act. In the 

future, other agencies may issue comprehensive 

carbon offset regulations that address these issues 

more specifically. 

580 See Holt, Carbon Offsets Workshop Tr. at 165 

(stating that consumers expect their carbon offset 

purchase to ‘‘make a difference,’’ and that ‘‘making 

a difference means that it’s additional to what 

would have happened otherwise,’’ but noting that 

there is still a debate about how to determine what 

is additional); WRI, Carbon Offsets Workshop Tr. at 

166. 

consumers may deem useful.573

Therefore, the Commission declines to 

advise marketers to provide such 

information in every offset 

advertisement.574

b. Timing of Emission Reductions 

Some commenters suggested that the 

Commission advise marketers to 

disclose the fact that their offsets reflect 

emission reductions scheduled to occur 

in the future. The Commission’s study, 

therefore, explored respondents’ views 

on the timing of emission reductions. 

The results suggest that this timing is 

important to consumers.575 Specifically, 

when emission reductions did not occur 

for several years, 43 percent of 

respondents indicated that the carbon 

offset claim was misleading.576

Accordingly, marketers may need to 

qualify their offset claims to avoid 

deceiving consumers. Absent evidence 

that consumers view their claims 

differently, the Commission proposes 

advising marketers to disclose if the 

offset purchase funds emission 

reductions that will not occur for two 

years or longer.577 The Commission, 

however, requests comment on this 

proposed disclosure. 

c. Substantiating Carbon Offset Claims – 

Tracking Offsets 

Like all marketers, carbon offset 

marketers must ensure that their 

advertising claims are truthful, not 

misleading, and substantiated. Section 

260.2 of the proposed, revised Guides 

explains that substantiation for 

environmental marketing claims often 

requires competent and reliable 

scientific evidence. Carbon offset sellers 

– particularly those new to the market 

– must pay special attention to this 

substantiation requirement given the 

complexities of substantiating offsets. 

For example, marketers must employ 

sophisticated accounting protocols to 

properly quantify the GHG emission 

reductions that result from a project, as 

well as rigorous tracking methods to 

ensure that the reductions are not sold 

more than once. Although savvy carbon 

offset marketers likely have these 

procedures in place already, the 

Commission proposes adding this point 

to the Guides to ensure that new market 

participants are fully informed of their 

responsibilities. 

d. Substantiating Carbon Offset Claims – 

Additionality 

Many aspects of the additionality 

debate raise unresolved technical and 

environmental policy issues. Because 

the Commission does not set 

environmental standards or policy, 

establishing a specific additionality test 

or tests appears to be outside of the 

FTC’s purview. However, in accordance 

with its responsibility to ensure that 

consumers are not misled, the 

Commission proposes issuing guidance 

regarding regulatory additionality. 

When consumers purchase carbon 

offsets, they expect that they are 

supporting a reduction in greenhouse 

gas emissions. If the law mandates a 

particular emission reduction, however, 

that reduction will occur whether or not 

someone buys an offset for the activity. 

In other words, if a company sells an 

offset based on a mandatory emission 

reduction, the purchaser is essentially 

funding that company’s regulatory 

compliance activities.578 Therefore, in 

such situations, the proposed Guides 

advise marketers that offset sales are 

deceptive.579

The Commission does not propose 

promulgating guidance on which 

specific additionality tests sellers must 

meet to substantiate offset claims. Even 

if consumers have a vague expectation 

of ‘‘additionality,’’ it is still unclear 

which test is appropriate to substantiate 

that interpretation.580 In addition, there 

is no consensus among experts in the 

field about which tests are appropriate. 

Of course, marketers are free to provide 

consumers with information about how 

and why their offset products are 

additional. While such disclosures may, 

or may not, be required to prevent 

deception, depending on the context, 

they may aid consumers in 

differentiating various offsets on the 

market. 

e. Substantiating Carbon Offset Claims – 

Use of RECs 

Similar to additionality, the use of 

RECs as a basis for offset claims 

involves unresolved technical and 

policy issues. These issues include the 

methods marketers should use to 

demonstrate that the RECs they 

purchase cause the claimed GHG 

reductions and which additionality tests 

they should apply. Further, it is unclear 

which entity owns the GHG reductions 

– the renewable energy generator or the 

fossil fuel-fired facility. Because of this 

uncertainty, there is a risk of double 

counting the emission reductions. 

It is unlikely that the Commission can 

provide general guidance on these 

issues without setting environmental 

policy, which is beyond the agency’s 

purview. Nevertheless, as with other 

environmental claims, marketers must 

substantiate their offset claims. Given 

the complexity of the issues related to 

the use of RECs as a basis for offsets, 

marketers should be cautious that they 

possess competent and reliable 

scientific evidence to substantiate their 

claims and ensure that the emission 

reductions are not double counted. 

VII. Request for Comment 

The Commission invites comment on 

all issues raised in this Notice, 

including all aspects of the proposed, 

revised Green Guides. In addition, the 

Commission requests responses to the 

following specific questions: 

1. Do consumers interpret general 

environmental claims, when qualified 

by a particular attribute, to mean that 

the particular attribute provides the 

product with a net environmental 

benefit? Please provide any relevant 

consumer perception evidence. 

Should the Commission advise 

marketers that a qualified-general 

environmental claim is deceptive if a 

particular attribute represents an 

environmental improvement in one 

area, but causes a negative impact 

elsewhere that makes the product less 

environmentally beneficial than the 

product otherwise would be? Why or 

why not? 

2. Would it be helpful to include an 

example in the Guides illustrating a 

qualified general environmental claim 

that is nevertheless deceptive? For 

example, a marketer advertises its 

product as ‘‘Eco-friendly sheets - made 

from bamboo.’’ Consumers would 

likely interpret this claim to mean 

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that the sheets are made from a 

natural fiber, using a process that is 

similar to that used for other natural 

fibers. The sheets, however, are 

actually a man-made fiber, rayon. 

Although bamboo can be used to 

make rayon, rayon is manufactured 

through a process that uses toxic 

chemicals and releases hazardous air 

pollutants. In this instance, the 

advertisement is deceptive. 

3. The Commission’s consumer 

perception study found that 27 

percent of respondents interpreted the 

claims ‘‘green’’ and ‘‘eco-friendly’’ as 

suggesting that a product has no 

(rather than ‘‘some’’) negative impact. 

Viewing this finding alone, would it 

be deceptive for a product to be 

advertised with an unqualified 

general environmental benefit claim if 

the product had a negligible 

environmental impact? Please provide 

any relevant consumer perception 

evidence. 

4. If a marketer makes an unqualified 

degradable claim for a liquid 

substance (or dissolvable solid), how 

long do consumers believe the 

substance will take to completely 

degrade? Please provide any relevant 

consumer perception evidence. 

Should the Commission provide 

guidance concerning this time period 

in the Guides? Why or why not? 

5. The Commission proposes adopting a 

maximum period of one year for 

complete decomposition of solid 

materials marketed as degradable 

without time qualification. Would 

this guidance lead to deceptive claims 

in circumstances where consumers 

would expect a material to degrade in 

less than one year? 

6. Should the Commission quantify the 

‘‘substantial majority’’ threshold in the 

recyclable section of the Guides? If so, 

how? If not, why not? 

7. Should the Commission quantify the 

‘‘significant percentage’’ threshold in 

the recyclable section of the Guides? 

If so, how? If not, why not? 

8. What changes, if any, should the 

Commission make to its guidance on 

pre-consumer recycled content 

claims? How do consumers interpret 

such claims? Please provide any 

relevant consumer perception 

evidence. 

a. If the Commission should retain its 

guidance that pre-consumer recycled 

materials be diverted from the solid 

waste stream: (1) should the 

Commission continue to consider 

‘‘reuse in the original manufacturing 

process’’ and ‘‘significant 

reprocessing’’ to determine if material 

is diverted from the solid waste 

stream; (2) what factors should the 

Commission consider to determine 

whether material was diverted from 

the solid waste stream; and (3) when 

processes that divert material from the 

waste stream become standard 

practice in an industry, do consumers 

continue to consider that material 

recycled content? 

b. If materials have historically been 

diverted from the solid waste stream 

and reused for one purpose (e.g., fiber 

fill in toys), but now may be reused 

for other higher purposes (e.g., as raw 

fiber for textiles), do consumers still 

consider that material to be recycled 

content even though the material was 

already being diverted from the solid 

waste stream? 

9. Do consumers understand the 

difference between pre-consumer and 

post-consumer recycled content? 

Please provide any relevant consumer 

perception evidence. 

10. Should the Commission continue to 

advise marketers that recycled content 

claims may be based on the annual 

weighted average of recycled content 

in an item? If so, why? If not, why 

not? Are recycled content claims 

based on this method likely to 

mislead consumers? Would qualifying 

the claim avoid that deception? If so, 

please describe what the disclosure 

should be, and why. Please also 

provide any relevant consumer 

perception evidence. 

11. If a product is advertised as ‘‘made 

with recycled materials,’’ either in 

whole or in part, should the 

Commission advise marketers to 

qualify that claim to indicate that the 

product is not recyclable if it is not? 

Why or why not? If a disclosure is 

needed, please describe what the 

disclosure should be, and why. 

12. Are consumers aware that 

manufacturers are no longer permitted 

to use CFCs in their products? Do noCFCs claims imply that other 

products still contain CFCs? Please 

provide any relevant consumer 

perception evidence. 

13. What guidance, if any, should the 

Commission provide concerning freeof claims based on substances which 

have never been associated with a 

product category? How do consumers 

understand such claims? Please 

provide any relevant consumer 

perception evidence. 

14. What guidance, if any, should the 

Commission provide concerning 

organic claims about non-agricultural 

products? How do consumers 

interpret organic claims for nonagricultural products? Do consumers 

understand such claims as referring to 

the products’ ingredients, 

manufacturing, or processing, or all 

three? Please provide any relevant 

consumer perception evidence. 

15. How should marketers qualify 

‘‘made with renewable materials’’ 

claims, if at all, to avoid deception? 

Does disclosing the type of material, 

how the material was sourced, and 

the reason the material is renewable 

adequately qualify the claim? Why or 

why not? Are there other disclosures 

that would adequately qualify a 

‘‘made with renewable materials’’ 

claim? Please describe such 

disclosures. Please also provide any 

relevant consumer perception 

evidence. 

16. How, and under what 

circumstances, should marketers 

qualify ‘‘made with renewable energy’’ 

claims to avoid deception? 

a. Does disclosing the source of the 

renewable energy adequately qualify 

the claim and prevent deceptive 

implications that the advertised 

product is made with renewable or 

recycled materials? Why or why not? 

Are there other disclosures that would 

adequately qualify a ‘‘made with 

renewable energy’’ claim? Please 

describe such disclosures. Please also 

provide any relevant consumer 

perception evidence. 

b. Should the Commission advise 

marketers to qualify a ‘‘made with 

renewable energy’’ claim if the 

advertised product is not made 

entirely with renewable energy? If so, 

should marketers qualify such claims 

if all or virtually all significant 

processes used in making a product 

are powered by renewable energy? 

Why or why not? Please provide any 

relevant consumer perception 

evidence. 

17. How do consumers understand 

‘‘carbon offset’’ and ‘‘carbon neutral’’ 

claims? Is there any evidence of 

consumer confusion concerning the 

use of these claims? Please provide 

any relevant consumer perception 

evidence. 

18. How should marketers qualify 

carbon offset claims, if at all, to avoid 

deception about the timing of 

emission reductions? Should 

marketers disclose if their offsets 

reflect emission reductions that are 

not scheduled to occur in two years? 

Should marketers make a disclosure if 

emission reductions are not 

scheduled to occur in some other time 

period? If so, what time period, and 

why? Would such a disclosure 

adequately qualify an offset claim to 

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581 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 FTC’s General Counsel will grant or deny the 

request consistent with applicable law and the 

public interest. See FTC Rule 4.9(c), 16 CFR 4.9(c). 

avoid deception? Please provide any 

relevant consumer perception 

evidence about this issue or on carbon 

offsets, generally. 

Interested parties are invited to 

submit written comments electronically 

or in paper form. Comments should 

state ‘‘Proposed, Revised Green Guides, 

16 CFR Part 260, Project No. P954501’’ 

in the text and, if applicable, on the 

envelope. 

The FTC will place your comment — 

including your name and your state — 

on the public record of this proceeding, 

and to the extent practicable, will make 

it available to the public on the FTC 

website at (http://www.ftc.gov/os/ 

publiccomments.shtm). As a matter of 

discretion, the Commission endeavors 

to remove individuals’ home contact 

information from the comments before 

placing them on its website. Because 

comments will be made public, they 

should not include: (1) any sensitive 

personal information, such as any 

individual’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; (2) any 

sensitive health information, such as 

medical records or other individually 

identifiable health information; or (3) 

any trade secret or any commercial or 

financial information which is 

privileged or confidential, as provided 

in Section 6(f) of the FTC Act, 15 U.S.C. 

46(f), and FTC Rule 4.10(a)(2), 16 CFR 

4.10(a)(2). Comments containing 

material for which confidential 

treatment is requested must be filed in 

paper form, must be clearly labeled 

‘‘Confidential,’’ and must comply with 

FTC Rule 4.9(c), 16 CFR 4.9(c).581

Because postal mail addressed to the 

FTC is subject to delay due to 

heightened security screening, if 

possible, please submit your comments 

in electronic form or send them by 

courier or overnight service. To ensure 

that the Commission considers an 

electronic comment, you must file it at 

(https://ftcpublic.commentworks.com/ 

ftc/revisedgreenguides) by following the 

instructions on the web-based form. If 

this Notice appears at (http:// 

www.regulations.gov/search/Regs/ 

home.html#home), you may also file a 

comment through that website. The 

Commission will consider all comments 

that regulations.gov forwards to it. You 

may also visit the FTC website at 

(http://www.ftc.gov) to read the Notice 

and the news release describing it. 

A comment filed in paper form 

should include the reference ‘‘Proposed, 

Revised Green Guides, 16 CFR Part 260, 

Project No. P954501’’ in the text of the 

comment and, if applicable, on the 

envelope, and should be mailed or 

delivered to the following address: 

Federal Trade Commission, Office of the 

Secretary, Room H-135 (Annex J), 600 

Pennsylvania Avenue, NW, Washington, 

DC 20580. 

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 

comments it receives. More information, 

including routine uses permitted by the 

Privacy Act, may be found in the FTC’s 

privacy policy at (http://www.ftc.gov/ 

ftc/privacy.shtm). 

VIII. Proposed, Revised Green Guides 

List of Subjects in 16 CFR Part 260 

Advertising, Environmental 

protection, Labeling, Trade practices. 

For the reasons set forth in the 

preamble, the Federal Trade 

Commission is proposing to revise 16 

CFR Part 260 to read as follows: 

PART 260—GUIDES FOR THE USE OF 

ENVIRONMENTAL MARKETING 

CLAIMS 

Sec. 

260.1 Purpose, scope, and structure of the 

guides. 

260.2 Interpretation and substantiation of 

environmental marketing claims. 

260.3 General principles. 

260.4 General environmental benefit 

claims. 

260.5 Carbon offsets. 

260.6 Certifications and seals of approval. 

260.7 Compostable claims. 

260.8 Degradable claims. 

260.9 Free-of and non-toxic claims. 

260.10 Ozone-safe and ozone-friendly 

claims. 

260.11 Recyclable claims. 

260.12 Recycled content claims. 

260.13 Refillable claims. 

260.14 Renewable energy claims. 

260.15 Renewable materials claims. 

260.16 Source reduction claims. 

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

§ 260.1 Purpose, scope, and structure of 

the guides. 

(a) These guides set forth the Federal 

Trade Commission’s current thinking 

about environmental claims. The guides 

help marketers avoid making 

environmental marketing claims that are 

unfair or deceptive under Section 5 of 

the Federal Trade Commission Act (FTC 

Act), 15 U.S.C.45. They do not confer 

any rights on any person and do not 

operate to bind the FTC or the public. 

The Commission, however, can take 

action under the FTC Act if a marketer 

makes an environmental claim 

inconsistent with the guides. In any 

such enforcement action, the 

Commission must prove that the 

challenged act or practice is unfair or 

deceptive in violation of Section 5 of the 

FTC Act. 

(b) These guides do not preempt 

federal, state, or local laws. Compliance 

with those laws, however, will not 

necessarily preclude Commission law 

enforcement action under the FTC Act. 

(c) These guides apply to claims about 

the environmental attributes of a 

product, package, or service in 

connection with the marketing, offering 

for sale, or sale of such item or service 

to individuals, businesses, or other 

entities. The guides apply to 

environmental claims in labeling, 

advertising, promotional materials, and 

all other forms of marketing in any 

medium, whether asserted directly or by 

implication, through words, symbols, 

logos, depictions, product brand names, 

or any other means. 

(d) The guides consist of general 

principles, specific guidance on the use 

of particular environmental claims, and 

examples. Claims may raise issues that 

are addressed by more than one 

example and in more than one section 

of the guides. The examples provide the 

Commission’s views on how reasonable 

consumers likely interpret certain 

claims. Marketers can use an alternative 

approach if the approach satisfies the 

requirements of Section 5 of the FTC 

Act. Whether a particular claim is 

deceptive will depend on the net 

impression of the advertisement, label, 

or other promotional material at issue. 

In addition, although many examples 

present specific claims and options for 

qualifying claims, the examples do not 

illustrate all permissible claims or 

qualifications under Section 5 of the 

FTC Act. 

§ 260.2 Interpretation and substantiation 

of environmental marketing claims. 

Section 5 of the FTC Act prohibits 

deceptive acts and practices in or 

affecting commerce. A representation, 

omission, or practice is deceptive if it is 

likely to mislead consumers acting 

reasonably under the circumstances and 

is material to consumers’ decisions. See 

FTC Policy Statement on Deception, 103 

F.T.C. 174 (1983). To determine if an 

advertisement is deceptive, marketers 

must identify all express and implied 

claims that the advertisement 

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reasonably conveys. Marketers must 

ensure that all reasonable 

interpretations of their claims are 

truthful, not misleading, and supported 

by a reasonable basis before they make 

the claims. See FTC Policy Statement 

Regarding Advertising Substantiation, 

104 F.T.C. 839 (1984). In the context of 

environmental marketing claims, a 

reasonable basis often requires 

competent and reliable scientific 

evidence. Such evidence consists of 

tests, analyses, research, or studies that 

have been conducted and evaluated in 

an objective manner by qualified 

persons and are generally accepted in 

the profession to yield accurate and 

reliable results. Such evidence should 

be sufficient in quality and quantity 

based on standards generally accepted 

in the relevant scientific fields, when 

considered in light of the entire body of 

relevant and reliable scientific evidence, 

to substantiate that each of the 

marketing claims is true. 

§ 260.3 General principles. 

The following general principles 

apply to all environmental marketing 

claims, including those described in 

§§ 260.4 through 260.16. Claims should 

comport with all relevant provisions of 

these guides. 

(a) Qualifications and disclosures: To 

prevent deceptive claims, qualifications 

and disclosures should be clear, 

prominent, and understandable. To 

make disclosures clear and prominent, 

marketers should use plain language 

and sufficiently large type, should place 

disclosures in close proximity to the 

qualified claim, and should avoid 

making inconsistent statements or using 

distracting elements that could undercut 

or contradict the disclosure. 

(b) Distinction between benefits of 

product, package, and service: Unless it 

is clear from the context, an 

environmental marketing claim should 

specify whether it refers to the product, 

the product’s packaging, a service, or 

just to a portion of the product, package, 

or service. In general, if the 

environmental attribute applies to all 

but minor, incidental components of a 

product or package, the marketer need 

not qualify the claim to identify that 

fact. However, there may be exceptions 

to this general principle. For example, if 

a marketer makes an unqualified 

recyclable claim, and the presence of 

the incidental component significantly 

limits the ability to recycle the product, 

the claim would be deceptive. 

Example 1: A plastic package 

containing a new shower curtain is 

labeled ‘‘recyclable’’ without further 

elaboration. Because the context of 

the claim does not make clear 

whether it refers to the plastic 

package or the shower curtain, the 

claim is deceptive if any part of either 

the package or the curtain, other than 

minor, incidental components, cannot 

be recycled. 

Example 2: A soft drink bottle is 

labeled ‘‘recycled.’’ The bottle is made 

entirely from recycled materials, but 

the bottle cap is not. Because the 

bottle cap is a minor, incidental 

component of the package, the claim 

is not deceptive. 

(c) Overstatement of environmental 

attribute: An environmental marketing 

claim should not overstate, directly or 

by implication, an environmental 

attribute or benefit. Marketers should 

not state or imply environmental 

benefits if the benefits are negligible. 

Example 1: An area rug is labeled 

‘‘50% more recycled content than 

before.’’ The manufacturer increased 

the recycled content of its rug from 

2% recycled fiber to 3%. Although 

the claim is technically true, it likely 

conveys the false impression that the 

manufacturer has increased 

significantly the use of recycled fiber. 

Example 2: A trash bag is labeled 

‘‘recyclable’’ without qualification. 

Because trash bags ordinarily are not 

separated from other trash at the 

landfill or incinerator for recycling, 

they are highly unlikely to be used 

again for any purpose. Even if the bag 

is technically capable of being 

recycled, the claim is deceptive since 

it asserts an environmental benefit 

where no meaningful benefit exists. 

(d) Comparative claims: Comparative 

environmental marketing claims should 

be clear to avoid consumer confusion 

about the comparison. Marketers should 

have substantiation for the comparison. 

Example 1: An advertiser notes that 

its glass bathroom tiles contain ‘‘20% 

more recycled content.’’ Depending on 

the context, the claim could be a 

comparison either to the advertiser’s 

immediately preceding product or to 

its competitors’ products. The 

advertiser should have substantiation 

for both interpretations. Otherwise, 

the advertiser should make the basis 

for comparison clear, for example, by 

saying ‘‘20% more recycled content 

than our previous bathroom tiles.’’ 

Example 2: An advertiser claims that 

‘‘our plastic diaper liner has the most 

recycled content.’’ The diaper liner 

has more recycled content, calculated 

as a percentage of weight, than any 

other on the market, although it is still 

well under 100%. The claim likely 

conveys that the product contains a 

significant percentage of recycled 

content and has significantly more 

recycled content than its competitors. 

If the advertiser cannot substantiate 

these messages, the claim would be 

deceptive. 

Example 3: An advertiser claims that 

its packaging creates ‘‘less waste than 

the leading national brand.’’ The 

advertiser implemented the source 

reduction several years ago and 

supported the claim by calculating the 

relative solid waste contributions of 

the two packages. The advertiser 

should have substantiation that the 

comparison remains accurate. 

Example 4: A product is advertised as 

‘‘environmentally preferable.’’ This 

claim likely conveys that the product 

is environmentally superior to other 

products. Because it is highly unlikely 

that the marketer can substantiate the 

messages conveyed by this statement, 

this claim is deceptive. The claim 

would not be deceptive if the 

marketer accompanied it with clear 

and prominent language limiting the 

environmental superiority 

representation to the particular 

attributes for which the marketer has 

substantiation, provided the 

advertisement’s context does not 

imply other deceptive claims. For 

example, the claim ‘‘Environmentally 

preferable: contains 50% recycled 

content compared to 20% for the 

leading brand’’ would not be 

deceptive. 

§ 260.4 General environmental benefit 

claims. 

(a) It is deceptive to misrepresent, 

directly or by implication, that a 

product, package, or service offers a 

general environmental benefit. 

(b) Unqualified general environmental 

benefit claims are difficult to interpret 

and likely convey a wide range of 

meanings. In many cases, such claims 

likely convey that the product, package, 

or service has specific and far-reaching 

environmental benefits and may convey 

that the item or service has no negative 

environmental impact. Because it is 

highly unlikely that marketers can 

substantiate all reasonable 

interpretations of these claims, 

marketers should not make unqualified 

general environmental benefit claims. 

(c) Marketers can qualify general 

environmental benefit claims to prevent 

deception about the nature of the 

environmental benefit being asserted. 

To avoid deception, marketers should 

use clear and prominent qualifying 

language that limits the claim to a 

specific benefit. 

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(d) Even if a marketer explains, and 

has substantiation for, the product’s 

specific environmental attributes, this 

explanation will not adequately qualify 

a general environmental benefit claim if 

the advertisement otherwise implies 

deceptive claims. Therefore, marketers 

should ensure that the advertisement’s 

context does not imply deceptive 

environmental claims. 

Example 1: The brand name ‘‘Ecofriendly’’ likely conveys that the 

product has far-reaching 

environmental benefits and may 

convey that the product has no 

negative environmental impact. 

Because it is highly unlikely that the 

marketer can substantiate these 

claims, the use of such a brand name 

is deceptive. A claim, such as ‘‘Ecofriendly: made with recycled 

materials,’’ would not be deceptive if 

the statement ‘‘made with recycled 

materials’’ is clear and prominent; the 

marketer has substantiation for the 

statement; and provided that the 

advertisement’s context does not 

imply other deceptive claims. 

Example 2: A product wrapper bears 

the claim ‘‘Environmentally Friendly.’’ 

Text on the wrapper explains that it 

is environmentally friendly because it 

was ‘‘not chlorine bleached, a process 

that has been shown to create harmful 

substances.’’ Although the wrapper 

was not bleached with chlorine, its 

production releases into the 

environment other harmful 

substances. Since reasonable 

consumers likely would interpret the 

‘‘Environmentally Friendly’’ claim, in 

combination with the explanation, to 

mean that no significant harmful 

substances are released into the 

environment, the ‘‘Environmentally 

Friendly’’ claim is deceptive. 

Example 3: A marketer states that its 

packaging is now ‘‘Greener than our 

previous packaging.’’ The packaging 

weighs 15% less than previous 

packaging, but it is not recyclable nor 

has it been improved in any other 

material respect. The claim is 

deceptive because reasonable 

consumers likely would interpret 

‘‘Greener’’ in this context to mean that 

other significant environmental 

aspects of the packaging also are 

improved over previous packaging. A 

claim stating ‘‘Greener than our 

previous packaging’’ accompanied by 

clear and prominent language such as, 

‘‘We’ve reduced the weight of our 

packaging by 15%,’’ would not be 

deceptive, provided that the 

advertisement’s context does not 

imply other deceptive claims. 

§ 260.5 Carbon offsets. 

(a) Given the complexities of carbon 

offsets, sellers should employ 

competent and reliable scientific and 

accounting methods to properly 

quantify claimed emission reductions 

and to ensure that they do not sell the 

same reduction more than one time. 

(b) It is deceptive to misrepresent, 

directly or by implication, that a carbon 

offset represents emission reductions 

that have already occurred or will occur 

in the immediate future. To avoid 

deception, marketers should clearly and 

prominently disclose if the carbon offset 

represents emission reductions that will 

not occur for two years or longer. 

(c) It is deceptive to claim, directly or 

by implication, that a carbon offset 

represents an emission reduction if the 

reduction, or the activity that caused the 

reduction, was required by law. 

Example 1: On its website, an airline 

invites consumers to purchase offsets 

to ‘‘neutralize the carbon emissions 

from your flight.’’ The proceeds from 

the offset sales fund future projects 

that will not reduce greenhouse gas 

emissions for two years. The claim 

likely conveys that the emission 

reductions either already have 

occurred or will occur in the near 

future. Therefore, the advertisement is 

deceptive. It would not be deceptive 

if the airline’s website stated ‘‘Offset 

the carbon emissions from your flight 

by funding new projects that will 

begin reducing emissions in two 

years.’’ 

Example 2: An offset provider claims 

that its product ‘‘will offset your own 

‘dirty’ driving habits.’’ The offset is 

based on methane capture at a landfill 

facility. State law requires this facility 

to capture all methane emitted from 

the landfill. The claim is deceptive 

because the emission reduction would 

have occurred regardless of whether 

consumers purchased the offsets. 

§ 260.6 Certifications and seals of 

approval. 

(a) It is deceptive to misrepresent, 

directly or by implication, that a 

product, package, or service has been 

endorsed or certified by an independent 

third-party. 

(b) A marketer’s use of the name, logo, 

or seal of approval of a third-party 

certifier is an endorsement, which 

should meet the criteria for 

endorsements provided in the FTC’s 

Endorsement Guides, 16 CFR Part 255, 

including Definitions (§ 255.0), General 

Considerations (§ 255.1), Expert 

Endorsements (§ 255.3), Endorsements 

by Organizations (§ 255.4), and 

Disclosure of Material Connections 

(§ 255.5). 

(c) Third-party certification does not 

eliminate a marketer’s obligation to 

ensure that it has substantiation for all 

claims reasonably communicated by the 

certification. 

(d) A marketer’s use of an unqualified 

environmental certification or seal of 

approval (i.e., one that does not state the 

basis for the certification) likely conveys 

a general environmental benefit claim 

(addressed in § 260.4). Because it is 

highly unlikely that marketers can 

substantiate such claims, marketers 

should not use unqualified certifications 

or seals of approval. 

(e) To avoid deception, language 

qualifying a certification or seal of 

approval should be clear and prominent 

and should clearly convey that the 

certification or seal of approval refers 

only to specific and limited benefits. 

This qualifying language may be part of 

the certification or seal itself. 

Example 1: An advertisement for 

paint features a ‘‘GreenLogo’’ seal and 

the statement ‘‘GreenLogo for 

Environmental Excellence.’’ This 

advertisement likely conveys that: the 

GreenLogo seal is awarded by an 

independent, third-party certifier with 

expertise in evaluating the 

environmental attributes of paint; and 

the product has far-reaching 

environmental benefits. If the paint 

manufacturer placed the GreenLogo 

seal in its advertisement, and no 

independent, third-party certifier 

evaluated the paint, the claim would 

be deceptive. The claim would not be 

deceptive if the marketer 

accompanied the seal with clear and 

prominent language: indicating that 

the marketer itself created the 

GreenLogo seal; and limiting the 

general environmental benefit 

representation to the particular 

product attributes for which the 

marketer has substantiation, provided 

that the advertisement’s context does 

not imply other deceptive claims. 

Example 2: A product advertisement 

includes a seal with the text ‘‘Certified 

by the Renewable Energy 

Association.’’ The product 

manufacturer is a dues-paying 

member of that association. Even if 

the association certified that the 

manufacturer uses only renewable 

energy, the use of the seal is deceptive 

because it likely conveys that the 

association is independent from the 

product manufacturer. To avoid 

deception, the manufacturer should 

accompany the seal with clear and 

prominent language disclosing the 

material connection. 

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Example 3: A manufacturer advertises 

its product as ‘‘certified by the 

American Institute of Degradable 

Materials.’’ The advertisement does 

not mention that the American 

Institute of Degradable Materials is an 

industry trade association. Regardless 

of whether the manufacturer is a 

member, this advertisement is 

deceptive because it likely conveys 

that the product is certified by an 

independent certifying organization, 

not an industry group. The 

advertisement would not be deceptive 

if the manufacturer accompanies its 

statement that the product is ‘‘certified 

by the American Institute of 

Degradable Materials’’ with clear and 

prominent language indicating that 

the Institute is an industry trade 

association, and if the manufacturer 

otherwise complies with § 260.8 of 

the Guides. 

Example 4: A marketer’s industry 

sales brochure for overhead lighting 

features a seal with the text ‘‘U.S. 

EcoFriendly Building Association’’ to 

show that the marketer is a member 

of that organization. Although the 

lighting manufacturer is, in fact, a 

member, this association has not 

evaluated the environmental 

attributes of the company’s product. 

This advertisement would be 

deceptive because it likely conveys 

that the U.S. EcoFriendly Building 

Association evaluated the product 

through testing or other objective 

standards. It also is likely to convey 

that the lighting has far-reaching 

environmental benefits. The use of the 

seal would not be deceptive if the 

manufacturer accompanies it with 

clear and prominent qualifying 

language: indicating that the seal 

refers to the company’s membership 

only and that the association did not 

evaluate the product’s environmental 

attributes, and limiting the general 

environmental benefit representation 

to the particular product attributes for 

which the marketer has 

substantiation, provided that the 

advertisement’s context does not 

imply other deceptive claims. For 

example, the marketer could state, 

‘‘Although we are a member of the 

U.S. EcoFriendly Building 

Association, it has not evaluated this 

product. Our lighting is made from 

100 percent recycled metal and uses 

energy efficient LED technology.’’ 

Example 5: A product label contains 

an environmental seal, either in the 

form of a globe icon or a globe icon 

with the text ‘‘EarthSmart.’’ 

EarthSmart is an independent, thirdparty certifier that uses standards 

previously adopted by EarthSmart 

and suitable for evaluating products’ 

chemical emissions. While the 

marketer meets EarthSmart’s 

standards for reduced chemical 

emissions during product usage, the 

product has no other specific 

environmental benefits. Either seal 

likely conveys that the product has 

far-reaching environmental benefits, 

and that Earth Smart certified the 

product for all of these benefits. If the 

marketer cannot substantiate these 

claims, the use of the seal would be 

deceptive. The seal would not be 

deceptive if the marketer 

accompanied it with clear and 

prominent language limiting the 

general environmental benefit claim 

to the particular product attributes for 

which the manufacturer has 

substantiation, provided that the 

advertisement’s context does not 

imply other deceptive claims. For 

example, the marketer could state 

next to the globe icon: ‘‘EarthSmart 

certifies that this product meets 

EarthSmart standards for reduced 

chemical emissions during product 

usage.’’ Alternatively, the claim would 

not be deceptive if the EarthSmart 

environmental seal itself stated: 

‘‘EarthSmart Certified for reduced 

chemical emissions during product 

usage.’’ 

Example 6: Great Paper Company 

sells photocopy paper with packaging 

that has a seal of approval from the 

No Chlorine Products Association, a 

non-profit third-party association. 

There are no material connections 

between Great Paper Company and 

the No Chlorine Products Association. 

Using standards widely recognized by 

industry experts, the No Chlorine 

Products Association certifies that 

products are chlorine-free. Moreover, 

the Association’s endorsement was 

reached by a process sufficient to 

ensure that the endorsement fairly 

reflects the collective judgment of the 

Association. The claim would not be 

deceptive. 

§ 260.7 Compostable claims. 

(a) It is deceptive to misrepresent, 

directly or by implication, that a 

product or package is compostable. 

(b) A marketer claiming that an item 

is compostable should have competent 

and reliable scientific evidence that all 

the materials in the item will break 

down into, or otherwise become part of, 

usable compost (e.g., soil-conditioning 

material, mulch) in a safe and timely 

manner (i.e., in approximately the same 

time as the materials with which it is 

composted) in an appropriate 

composting program or facility or in a 

home compost pile or device. 

(c) A marketer should clearly and 

prominently qualify compostable claims 

to the extent necessary to avoid 

deception if: the item cannot be 

composted safely or in a timely manner 

in a home compost pile or device; or the 

claim misleads reasonable consumers 

about the environmental benefit 

provided when the item is disposed of 

in a landfill. 

(d) To avoid deception about the 

limited availability of municipal or 

institutional composting facilities, a 

marketer should clearly and 

prominently qualify compostable claims 

if such facilities are not available to a 

substantial majority of consumers or 

communities where the item is sold. 

Example 1: A manufacturer indicates 

that its unbleached coffee filter is 

compostable. The unqualified claim is 

not deceptive, provided the 

manufacturer has substantiation that 

the filter can be converted safely to 

usable compost in a timely manner in 

a home compost pile or device. If so, 

the extent of local municipal or 

institutional composting facilities is 

irrelevant. 

Example 2: A garden center sells grass 

clipping bags labeled as ‘‘Compostable 

in California Municipal Yard 

Trimmings Composting Facilities.’’ 

When the bags break down, however, 

they release toxins into the compost. 

The claim is deceptive if the presence 

of these toxins prevents the compost 

from being usable. 

Example 3: An electronics 

manufacturer makes an unqualified 

claim that its package is compostable. 

Although municipal or institutional 

composting facilities exist where the 

product is sold, the package will not 

break down into usable compost in a 

home compost pile or device. To 

avoid deception, the manufacturer 

should clearly and prominently 

disclose that the package is not 

suitable for home composting. 

Example 4: Nationally marketed lawn 

and leaf bags state ‘‘compostable’’ on 

each bag. The bags also feature text 

disclosing that the bag is not designed 

for use in home compost piles. Yard 

trimmings programs in many 

communities compost these bags, but 

such programs are not available to a 

substantial majority of consumers or 

communities where the bag is sold. 

The claim is deceptive because it 

likely conveys that composting 

facilities are available to a substantial 

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1 The guides’ treatment of unqualified degradable 

claims is intended to help prevent deception and 

is not intended to establish performance standards 

to ensure the degradability of products when 

littered. 

majority of consumers or 

communities. To avoid deception, the 

marketer should clearly and 

prominently indicate the limited 

availability of such programs. A 

marketer could state ‘‘Appropriate 

facilities may not exist in your area,’’ 

or provide the approximate 

percentage of communities or 

consumers for which such programs 

are available. 

Example 5: A manufacturer sells a 

disposable diaper that states, ‘‘This 

diaper can be composted if your 

community is one of the 50 that have 

composting facilities.’’ The claim is 

not deceptive if composting facilities 

are available as claimed and the 

manufacturer has substantiation that 

the diaper can be converted safely to 

usable compost in solid waste 

composting facilities. 

Example 6: A manufacturer markets 

yard trimmings bags only to 

consumers residing in particular 

geographic areas served by county 

yard trimmings composting programs. 

The bags meet specifications for these 

programs and are labeled, 

‘‘Compostable Yard Trimmings Bag for 

County Composting Programs.’’ The 

claim is not deceptive. Because the 

bags are compostable where they are 

sold, a qualification is not needed to 

indicate the limited availability of 

composting facilities. 

§ 260.8 Degradable claims. 

(a) It is deceptive to misrepresent, 

directly or by implication, that a 

product or package is degradable, 

biodegradable, oxo-degradable, oxobiodegradable, or photodegradable. The 

following guidance for degradable 

claims also applies to biodegradable, 

oxo-degradable, oxo-biodegradable, or 

photodegradable claims. 

(b) A marketer making an unqualified 

degradable claim should have 

competent and reliable scientific 

evidence that the entire item will 

completely break down and return to 

nature (i.e., decompose into elements 

found in nature) within a reasonably 

short period of time after customary 

disposal. 

(c) It is deceptive to make an 

unqualified degradable claim for solid 

items if the items do not completely 

decompose within one year after 

customary disposal. Unqualified 

degradable claims for items that are 

customarily disposed in landfills, 

incinerators, and recycling facilities are 

deceptive because these locations do not 

present conditions in which complete 

decomposition will occur within one 

year. 

(d) Degradable claims should be 

qualified clearly and prominently to the 

extent necessary to avoid deception 

about: the product or package’s ability 

to degrade in the environment where it 

is customarily disposed; and the rate 

and extent of degradation. 

Example 1: A marketer advertises its 

trash bags using an unqualified 

‘‘degradable’’ claim. The marketer 

relies on soil burial tests to show that 

the product will decompose in the 

presence of water and oxygen. 

Consumers, however, customarily 

dispose of trash bags in incineration 

facilities or landfills where they will 

not degrade within one year. The 

claim is, therefore, deceptive. 

Example 2: A marketer advertises a 

commercial agricultural plastic mulch 

film with the claim 

‘‘Photodegradable,’’ and clearly and 

prominently qualifies the term with 

the phrase ‘‘Will break down into 

small pieces if left uncovered in 

sunlight.’’ The advertiser possesses 

competent and reliable scientific 

evidence that within one year, the 

product will break down after being 

exposed to sunlight and into 

sufficiently small pieces to become 

part of the soil. Thus, the qualified 

claim is not deceptive. Because the 

claim is qualified to indicate the 

limited extent of breakdown, the 

advertiser need not meet the 

consumer expectations for an 

unqualified photodegradable claim, 

i.e., that the product will not only 

break down, but also will decompose 

into elements found in nature. 

Example 3: A marketer advertises its 

shampoo as ‘‘biodegradable’’ without 

qualification. The advertisement 

makes clear that only the shampoo, 

and not the bottle, is biodegradable. 

The marketer has competent and 

reliable scientific evidence 

demonstrating that the shampoo, 

which is customarily disposed in 

sewage systems, will break down and 

decompose into elements found in 

nature in a reasonably short period of 

time in the sewage system 

environment. Therefore, the claim is 

not deceptive. 

Example 4: A plastic six-pack ring 

carrier is marked with a small 

diamond. Several state laws require 

that the carriers be marked with this 

symbol to indicate that they meet 

certain degradability standards if the 

carriers are littered. The use of the 

diamond, by itself, does not constitute 

a degradable claim.1

Example 5: A fiber pot containing a 

plant is labeled ‘‘biodegradable.’’ The 

pot is customarily buried in the soil 

along with the plant. Once buried, the 

pot fully decomposes during the 

growing season, allowing the roots of 

the plant to grow into the surrounding 

soil. The unqualified claim is not 

deceptive. 

§ 260.9 Free-of and non-toxic claims. 

(a) It is deceptive to misrepresent, 

directly or by implication, that a 

product, package, or service is free of, or 

does not contain or use, a substance or 

that a product, package, or service is 

non-toxic. Such claims should be 

clearly and prominently qualified to the 

extent necessary to avoid deception. 

(b) A truthful claim that a product, 

package, or service is free of, or does not 

contain or use, a substance may 

nevertheless be deceptive if: the 

product, package, or service contains or 

uses substances that pose the same or 

similar environmental risks as the 

substance that is not present; or the 

substance has never been associated 

with the product category. 

(c) Depending on the context, some 

no, free-of, or does-not-contain claims 

may be appropriate even where a 

product, package, or service contains or 

uses a de minimis amount of a 

substance. 

(d) A marketer that makes a no, freeof, or does-not-contain claim that 

reasonable consumers would interpret 

to convey additional environmental 

claims, including general environmental 

benefit claims or comparative 

superiority claims, must have 

substantiation for each such claim. 

(e) A non-toxic claim likely conveys 

that a product, package, or service is 

non-toxic both for humans and for the 

environment generally. Therefore, 

marketers making non-toxic claims 

should have competent and reliable 

scientific evidence that the product, 

package, or service is non-toxic for 

humans and for the environment or 

should clearly and prominently qualify 

their claims to avoid deception. 

Example 1: A package of t-shirts is 

labeled ‘‘Shirts made with a chlorinefree bleaching process.’’ The shirts, 

however, are bleached with a process 

that releases a reduced, but still 

significant, amount of the same 

harmful byproducts associated with 

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2 Commission staff has informally interpreted the 

term ‘‘substantial majority,’’ as used in this context, 

to mean at least 60 percent. 

3 Batteries labeled in accordance with the 

Mercury-Containing and Rechargeable Battery 

Management Act, 42 U.S.C. § 14322(b), are deemed 

to be in compliance with these Guides. 

chlorine bleaching. The claim 

overstates the product’s benefits 

because reasonable consumers likely 

would interpret it to mean that the 

product’s manufacture does not cause 

any of the environmental risks posed 

by chlorine bleaching. A claim, 

however, that the shirts were 

‘‘bleached with a process that 

substantially reduces harmful 

substances associated with chlorine 

bleaching’’ would not be deceptive, if 

substantiated. 

Example 2: A manufacturer advertises 

its insulation as ‘‘formaldehyde free.’’ 

Although the manufacturer does not 

use formaldehyde as a binding agent 

to produce the insulation, tests show 

that the insulation still emits trace 

amounts of formaldehyde. The seller 

has substantiation that formaldehyde 

is present in trace amounts in 

virtually all indoor and (to a lesser 

extent) outdoor environments and 

that its insulation emits less 

formaldehyde than is typically 

present in outdoor environments. In 

this context, the trace levels of 

formaldehyde emissions likely are 

inconsequential to consumers. 

Therefore, the seller’s free-of claim 

would not be deceptive. 

Example 3: A marketer advertises a 

lawn care product as ‘‘essentially nontoxic’’ and ‘‘practically non-toxic.’’ The 

advertisement likely conveys that the 

product does not pose any risk to 

humans or the environment. If the 

pesticide poses no risk to humans but 

is toxic to the environment, the claims 

would be deceptive. 

§ 260.10 Ozone-safe and ozone-friendly 

claims. 

It is deceptive to misrepresent, 

directly or by implication, that a 

product, package, or service is safe for, 

or friendly to, the ozone layer or the 

atmosphere. 

Example 1: A product is labeled 

‘‘ozone friendly.’’ The claim is 

deceptive 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, 

Pub. L. No. 101-549, and others 

subsequently designated by EPA as 

ozone-depleting substances. These 

chemicals include 

chlorofluorocarbons (CFCs), halons, 

carbon tetrachloride, 1,1,1- 

trichloroethane, methyl bromide, 

hydrobromofluorocarbons, and 

hydrochlorofluorocarbons (HCFCs). 

Example 2: An aerosol air freshener is 

labeled ‘‘ozone friendly.’’ Some of the 

product’s ingredients are volatile 

organic compounds (VOCs) that may 

cause smog by contributing to groundlevel ozone formation. The claim 

likely conveys that the product is safe 

for the atmosphere as a whole, and, 

therefore, is deceptive. 

Example 3: A manufacturer has 

substituted non-ozone-depleting 

refrigerants for the ozone-depleting 

substances in its residential air 

conditioning equipment. The 

manufacturer advertises its equipment 

as ‘‘environmentally friendly.’’ This 

general environmental benefit claim 

likely conveys that the product has far 

reaching environmental benefits. 

However, the manufacturer’s air 

conditioning equipment consumes a 

substantial amount of energy and 

relies on refrigerants that are 

greenhouse gases. Accordingly, this 

claim is deceptive. 

§ 260.11 Recyclable claims. 

(a) It is deceptive to misrepresent, 

directly or by implication, that a 

product or package is recyclable. A 

product or package should not be 

marketed as recyclable unless it can be 

collected, separated, or otherwise 

recovered from the solid waste stream 

through an established recycling 

program for reuse or use in 

manufacturing or assembling another 

item. 

(b) Marketers should clearly and 

prominently qualify recyclable claims to 

the extent necessary to avoid deception 

about the availability of recycling 

programs and collection sites to 

consumers. 

(1) When recycling facilities are 

available to a substantial majority2 of 

consumers or communities where the 

item is sold, marketers can make 

unqualified recyclable claims. 

(2) When recycling facilities are 

available to a significant percentage of 

consumers or communities where the 

item is sold, but not to a substantial 

majority, marketers should clearly and 

prominently qualify their recyclable 

claims. Suggested qualifications are: 

‘‘This product [package] may not be 

recyclable in your area,’’ ‘‘Recycling 

programs for this product [package] may 

not exist in your area,’’ or a statement of 

the percentage of communities or the 

population that have programs where 

the item can be recycled. 

(3) When recycling facilities are 

available to less than a significant 

percentage of consumers or 

communities where the item is sold, 

marketers should clearly and 

prominently qualify their recyclable 

claims. Suggested qualifications are: 

‘‘This product [package] is recyclable 

only in the few communities that have 

recycling programs,’’ or a statement of 

the percentage of communities or the 

population that have programs where 

the item can be recycled. 

(c) Marketers can make unqualified 

recyclable claims for a product or 

package if the entire product or package, 

excluding minor incidental 

components, is recyclable. For items 

that are partially made of recyclable 

components, marketers should clearly 

and prominently qualify the recyclable 

claim to avoid deception about which 

portions are recyclable. 

(d) If any component significantly 

limits the ability to recycle the item, any 

recyclable claim would be deceptive. 

An item that is made from recyclable 

material, but, because of its shape, size, 

or some other attribute, is not accepted 

in recycling programs, should not be 

marketed as recyclable.3

Example 1: A packaged product is 

labeled with an unqualified claim, 

‘‘recyclable.’’ It is unclear from the 

type of product and other context 

whether the claim refers to the 

product or its package. The 

unqualified claim likely conveys that 

both the product and its packaging, 

except for minor, incidental 

components, can be recycled. Unless 

the manufacturer has substantiation 

for both messages, it should clearly 

and prominently qualify the claim to 

indicate which portions are 

recyclable. 

Example 2: A nationally marketed 

plastic yogurt container displays the 

Society of the Plastics Industry (SPI) 

code (which consists of a design of 

arrows in a triangular shape 

containing a number in the center and 

an abbreviation identifying the 

component plastic resin) on the front 

label of the container, in close 

proximity to the product name and 

logo. This conspicuous use of the SPI 

code constitutes a recyclable claim. 

Unless recycling facilities for this 

container are available to a substantial 

majority of consumers or 

communities, the manufacturer 

should qualify the claim to disclose 

the limited availability of recycling 

programs. If the manufacturer places 

the SPI code, without more, in an 

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4 The term ‘‘used’’ refers to parts that are not new 

and that have not undergone any re-manufacturing 

or reconditioning. 

inconspicuous location on the 

container (e.g., embedded in the 

bottom of the container), it would not 

constitute a recyclable claim. 

Example 3: A container can be burned 

in incinerator facilities to produce 

heat and power. It cannot, however, 

be recycled into another product or 

package. Any claim that the container 

is recyclable would be deceptive. 

Example 4: A paperboard package is 

marketed nationally and labeled 

either ‘‘Recyclable where facilities 

exist’’ or ‘‘Recyclable – Check to see if 

recycling facilities exist in your area.’’ 

Recycling programs for these packages 

are available to a significant 

percentage of the population, but not 

to a substantial majority of consumers 

nationwide. Both claims are deceptive 

because they do not adequately 

disclose the limited availability of 

recycling programs. To avoid 

deception, the marketer should use a 

clearer qualification, such as those 

suggested in § 260.11(b)(2). 

Example 5: Foam polystyrene cups 

are advertised as ‘‘Recyclable in the 

few communities with facilities for 

foam polystyrene cups.’’ A half-dozen 

major metropolitan areas have 

established collection sites for 

recycling those cups. The claim is not 

deceptive because it clearly discloses 

the limited availability of recycling 

programs. 

Example 6: A package is labeled 

‘‘Includes some recyclable material.’’ 

The package is composed of four 

layers of different materials, bonded 

together. One of the layers is made 

from recyclable material, but the 

others are not. While programs for 

recycling this type of package are 

available to a substantial majority of 

consumers, only a few of those 

programs have the capability to 

separate the recyclable layer from the 

non-recyclable layers. Even though it 

is technologically possible to separate 

the layers, the claim is deceptive. An 

appropriately qualified claim would 

be ‘‘Includes material recyclable in the 

few communities that can process 

multi-layer products.’’ 

Example 7: A product container is 

labeled ‘‘recyclable.’’ The marketer 

advertises and distributes the product 

only in Missouri. Collection sites for 

recycling the container are available 

to a substantial majority of Missouri 

residents but are not yet available 

nationally. Because programs are 

generally available where the product 

is sold, the unqualified claim is not 

deceptive. 

Example 8: A manufacturer of onetime use cameras, with dealers in a 

substantial majority of communities, 

operates a take-back program that 

collects those cameras through all of 

its dealers. The manufacturer 

reconditions the cameras for resale 

and labels them ‘‘Recyclable through 

our dealership network.’’ This claim is 

not deceptive, even though the 

cameras are not recyclable through 

conventional curbside or drop off 

recycling programs. 

Example 9: A manufacturer advertises 

its toner cartridges for computer 

printers as ‘‘Recyclable. Contact your 

local dealer for details.’’ Although all 

of the company’s dealers recycle 

cartridges, the dealers are not located 

in a substantial majority of 

communities where cartridges are 

sold. Therefore, the claim is 

deceptive. If dealers are located in a 

significant number of communities, 

the manufacturer should qualify its 

claim as suggested in § 260.11(b)(2). If 

participating dealers are located in 

only a few communities, the 

manufacturer should qualify the claim 

as suggested in § 260.11(b)(3). 

Example 10: An aluminum can is 

labeled ‘‘Please Recycle.’’ This 

statement likely conveys that the can 

is recyclable. If collection sites for 

recycling these cans are available to a 

substantial majority of consumers or 

communities, the marketer does not 

need to qualify the claim. 

§ 260.12 Recycled content claims. 

(a) It is deceptive to misrepresent, 

directly or by implication, that a 

product or package is made of recycled 

content. Recycled content includes 

recycled raw material, as well as used,4

reconditioned, and re-manufactured 

components. 

(b) It is deceptive to represent, 

directly or by implication, that an item 

contains recycled content unless it is 

composed of materials that have been 

recovered or otherwise diverted from 

the solid waste stream, either during the 

manufacturing process (pre-consumer), 

or after consumer use (post-consumer). 

If the source of recycled content 

includes pre-consumer material, the 

advertiser should have substantiation 

that the pre-consumer material would 

otherwise have entered the solid waste 

stream. Recycled content claims may – 

but do not have to – distinguish 

between pre-consumer and postconsumer materials. Where a marketer 

distinguishes between pre-consumer 

and post-consumer materials, it should 

have substantiation for any express or 

implied claim about the percentage of 

pre-consumer or post-consumer content 

in an item. 

(c) Marketers can make unqualified 

claims of recycled content if the entire 

product or package, excluding minor, 

incidental components, is made from 

recycled material. For items that are 

partially made of recycled material, the 

marketer should clearly and 

prominently qualify the claim to avoid 

deception about the amount or 

percentage, by weight, of recycled 

content in the finished product or 

package. 

(d) For products that contain used, 

reconditioned, or re-manufactured 

components, the marketer should 

clearly and prominently qualify the 

recycled content claim to avoid 

deception about the nature of such 

components. No such qualification is 

necessary where it is clear to reasonable 

consumers from context that a product’s 

recycled content consists of used, 

reconditioned, or re-manufactured 

components. 

Example 1: A manufacturer collects 

spilled raw material and scraps from 

the original manufacturing process. 

After a minimal amount of 

reprocessing, the manufacturer 

combines the spills and scraps with 

virgin material for use in production 

of the same product. A recycled 

content claim is deceptive since the 

spills and scraps are normally reused 

by industry within the original 

manufacturing process and would not 

normally have entered the waste 

stream. 

Example 2: A manufacturer purchases 

material from a firm that collects 

discarded material from other 

manufacturers and resells it. All of the 

material was diverted from the solid 

waste stream and is not normally 

reused by industry within the original 

manufacturing process. The 

manufacturer includes the weight of 

this material in its calculations of the 

recycled content of its products. It 

would not be deceptive for the 

manufacturer to advertise the amount 

of recycled content in its product 

because, absent the purchase and 

reuse of this material, it would have 

entered the solid waste stream. 

Example 3: Fifty percent (50%) of a 

greeting card’s fiber weight is 

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5 The term ‘‘rebuilding’’ means that the dealer 

dismantled and reconstructed the transmission as 

necessary, cleaned all of its internal and external 

parts and eliminated rust and corrosion, restored all 

impaired, defective or substantially worn parts to a 

sound condition (or replaced them if necessary), 

and performed any operations required to put the 

transmission in sound working condition. 

composed from paper that was 

diverted from the solid waste stream. 

Of this material, 30% is postconsumer and 20% is pre-consumer. 

It would not be deceptive if the 

marketer claimed that the card either 

‘‘contains 50% recycled fiber’’ or 

‘‘contains 50% total recycled fiber, 

including 30% post-consumer fiber.’’ 

Example 4: A paperboard package 

with 20% recycled fiber by weight is 

labeled ‘‘20% post-consumer recycled 

fiber.’’ The recycled content was 

composed of overrun newspaper stock 

never sold to customers. Because the 

newspapers never reached consumers, 

the claim is deceptive. 

Example 5: A product in a multicomponent package, such as a 

paperboard box in a shrink-wrapped 

plastic cover, indicates that it has 

recycled packaging. The paperboard 

box is made entirely of recycled 

material, but the plastic cover is not. 

The claim is deceptive because, 

without qualification, it suggests that 

both components are recycled. A 

claim limited to the paperboard box 

would not be deceptive. 

Example 6: A manufacturer makes a 

package from laminated layers of foil, 

plastic, and paper, although the layers 

are indistinguishable to consumers. 

The label claims that ‘‘one of the three 

layers of this package is made of 

recycled plastic.’’ The plastic layer is 

made entirely of recycled plastic. The 

claim is not deceptive, provided the 

recycled plastic layer constitutes a 

significant component of the entire 

package. 

Example 7: A frozen dinner package 

is composed of a plastic tray inside a 

cardboard box. It states ‘‘package 

made from 30% recycled material.’’ 

Each packaging component is one-half 

the weight of the total package. The 

box is 20% recycled content by 

weight, while the plastic tray is 40% 

recycled content by weight. The claim 

is not deceptive, since the average 

amount of recycled material is 30%. 

Example 8: A manufacturer labels a 

paper greeting card ‘‘50% recycled 

fiber.’’ The manufacturer purchases 

paper stock from several sources, and 

the amount of recycled fiber in the 

stock provided by each source varies. 

If the 50% figure is based on the 

annual weighted average of recycled 

material purchased from the sources 

after accounting for fiber loss during 

the production process, the claim is 

not deceptive. 

Example 9: A packaged food product 

is labeled with a three-chasing-arrows 

symbol (a Mo ̈bius loop) without 

explanation. By itself, the symbol 

likely conveys that the packaging is 

both recyclable and made entirely 

from recycled material. Unless the 

marketer has substantiation for both 

messages, the claim should be 

qualified. The claim may need to be 

further qualified, to the extent 

necessary, to disclose the limited 

availability of recycling programs 

and/or the percentage of recycled 

content used to make the package. 

Example 10: In an office supply 

catalog, a manufacturer advertises its 

printer toner cartridges ‘‘65% 

recycled.’’ The cartridges contain 25% 

recycled raw materials and 40% 

reconditioned parts. The claim is 

deceptive because reasonable 

consumers likely would not know or 

expect that a cartridge’s recycled 

content consists of reconditioned 

parts. It would not be deceptive if the 

manufacturer claimed ‘‘65% recycled 

content; including 40% from 

reconditioned parts.’’ 

Example 11: A store sells both new 

and used sporting goods. One of the 

items for sale in the store is a baseball 

helmet that, although used, is no 

different in appearance than a brand 

new item. The helmet bears an 

unqualified ‘‘Recycled’’ label. This 

claim is deceptive because reasonable 

consumers likely would believe that 

the helmet is made of recycled raw 

materials, when it is, in fact, a used 

item. An acceptable claim would bear 

a disclosure clearly and prominently 

stating that the helmet is used. 

Example 12: An automotive dealer 

recovers a serviceable engine from a 

wrecked vehicle. Without repairing, 

rebuilding, re-manufacturing, or in 

any way altering the engine or its 

components, the dealer attaches a 

‘‘Recycled’’ label to the engine, and 

offers it for sale in its used auto parts 

store. In this situation, an unqualified 

recycled content claim likely is not 

deceptive because reasonable 

consumers likely would understand 

that the engine is used and has not 

undergone any rebuilding. 

Example 13: An automobile parts 

dealer purchases a transmission that 

has been recovered from a junked 

vehicle. Eighty-five percent of the 

transmission, by weight, was rebuilt 

and 15% constitutes new materials. 

After rebuilding5 the transmission in 

accordance with industry practices, 

the dealer packages it for resale in a 

box labeled ‘‘Rebuilt Transmission,’’ 

or ‘‘Rebuilt Transmission (85% 

recycled content from rebuilt parts),’’ 

or ‘‘Recycled Transmission (85% 

recycled content from rebuilt parts).’’ 

These claims are not deceptive. 

§ 260.13 Refillable claims. 

It is deceptive to misrepresent, 

directly or by implication, that a 

package is refillable. A marketer should 

not make an unqualified refillable claim 

unless the marketer provides the means 

for refilling the package. The marketer 

may either provide a system for the 

collection and refill of the package, or 

offer for sale a product that consumers 

can purchase to refill the original 

package. 

Example 1: A container is labeled 

‘‘refillable three times.’’ The 

manufacturer has the capability to 

refill returned containers and can 

show that the container will 

withstand being refilled at least three 

times. The manufacturer, however, 

has established no collection program. 

The unqualified claim is deceptive 

because there is no means to return 

the container to the manufacturer for 

refill. 

Example 2: A small bottle of fabric 

softener states that it is in a ‘‘handy 

refillable container.’’ In the same 

market area, the manufacturer also 

sells a large-sized bottle that 

consumers use to refill the smaller 

bottles. The claim is not deceptive 

because there is a reasonable means 

for the consumer to refill the smaller 

container. 

§ 260.14 Renewable energy claims. 

(a) It is deceptive to misrepresent, 

directly or by implication, that a 

product or package is made with 

renewable energy or that a service uses 

renewable energy. Marketers should not 

make unqualified renewable energy 

claims, directly or by implication, if 

power derived from fossil fuels is used 

to manufacture any part of the 

advertised item or is used to power any 

part of the advertised service. 

(b) Research suggests that reasonable 

consumers may interpret renewable 

energy claims differently than marketers 

may intend. Unless marketers have 

substantiation for all their express and 

reasonably implied claims, they should 

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clearly and prominently qualify their 

renewable energy claims by specifying 

the source of the renewable energy (e.g., 

wind or solar energy). 

(c) It is deceptive to make an 

unqualified ‘‘made with renewable 

energy’’ claim unless all or virtually all 

of the significant manufacturing 

processes involved in making the 

product or package are powered with 

renewable energy or conventional 

energy offset by renewable energy 

certificates. 

(d) If a marketer generates renewable 

electricity but sells renewable energy 

certificates for all of that electricity, it 

would be deceptive for the marketer to 

represent, directly or by implication, 

that it uses renewable energy. 

Example 1: A marketer advertises its 

clothing line as ‘‘made with wind 

power.’’ The marketer buys renewable 

energy certificates to match only 50% 

of the energy it uses. The marketer’s 

claim is deceptive because reasonable 

consumers likely interpret the claim 

to mean that the power was composed 

entirely of renewable energy. If the 

marketer stated ‘‘we purchase wind 

energy for half of our manufacturing 

facilities,’’ the claim would not be 

deceptive. 

Example 2: A company places solar 

panels on its store roof to generate 

power and advertises that its store is 

‘‘100% solar-powered.’’ The company, 

however, sells renewable energy 

certificates based on the renewable 

attributes of all the power it generates. 

Even if the company uses the 

electricity generated by the solar 

panels, it has, by selling renewable 

energy certificates, transferred the 

right to characterize that electricity as 

renewable. The company’s claim is 

therefore deceptive. It also would be 

deceptive for this company to 

advertise that it ‘‘hosts a renewable 

power facility’’ because reasonable 

consumers likely would interpret this 

claim to mean that the company uses 

renewable energy. 

§ 260.15 Renewable materials claims. 

(a) It is deceptive to misrepresent, 

directly or by implication, that a 

product or package is made with 

renewable materials. 

(b) Research suggests that reasonable 

consumers may interpret renewable 

materials claims differently than 

marketers may intend. For example, 

reasonable consumers may believe an 

item advertised as being ‘‘made with 

renewable materials’’ is made with 

recycled content, recyclable, and 

biodegradable. Unless marketers have 

substantiation for all their express and 

reasonably implied claims, they should 

clearly and prominently qualify their 

renewable materials claims by 

specifying the material used, how the 

material is sourced, and why the 

material is renewable. 

(c) It is deceptive to make an 

unqualified ‘‘made with renewable 

materials’’ claim unless the product or 

package (excluding minor, incidental 

components) is made entirely with 

renewable materials. 

Example 1: A marketer makes the 

unqualified claim that its flooring is 

‘‘made with renewable materials.’’ 

Reasonable consumers likely interpret 

this claim to mean that the flooring 

also is made with recycled content, 

recyclable, and biodegradable. Unless 

the marketer has substantiation for 

these implied claims, the unqualified 

‘‘made with renewable materials’’ 

claim is deceptive. The marketer 

could qualify the claim by stating, 

clearly and prominently, ‘‘Our 

flooring is made from 100% bamboo, 

a fast-growing plant, which we 

cultivate at the same rate, or faster, 

than we use it.’’ 

Example 2: A marketer’s packaging 

states that ‘‘Our packaging is made 

from 50% plant-based renewable 

materials. Because we turn fastgrowing plants into bio-plastics, only 

half of our product is made from 

petroleum-based materials.’’ If 

substantiated, this claim is unlikely to 

be deceptive. 

Example 3: Through testing, a 

marketer can establish that its product 

is composed entirely of biological 

material. It markets its product as 

‘‘made with 100% renewable 

materials.’’ This claim, without further 

explanation, likely conveys that the 

product has other environmental 

benefits, including that it is 

recyclable, made with recycled 

content, or biodegradable. If the 

marketer cannot substantiate these 

messages, the claim would be 

deceptive. 

§ 260.16 Source reduction claims. 

It is deceptive to misrepresent, 

directly or by implication, that a 

product or package has been reduced or 

is lower in weight, volume, or toxicity. 

Marketers should clearly and 

prominently qualify source reduction 

claims to the extent necessary to avoid 

deception about the amount of the 

source reduction and the basis for any 

comparison. 

Example 1: An advertiser claims that 

disposal of its product generates ‘‘10% 

less waste.’’ Because this claim could 

be a comparison to the advertiser’s 

immediately preceding product or to 

its competitors’ products, the 

advertiser should have substantiation 

for both interpretations. Otherwise, 

the advertiser should clarify which 

comparison it intends and have 

substantiation for that comparison. A 

claim of ‘‘10% less waste than our 

previous product’’ would not be 

deceptive if the advertiser has 

substantiation that shows that the 

current product’s disposal contributes 

10% less waste by weight or volume 

to the solid waste stream when 

compared with the immediately 

preceding version of the product. 

By direction of the Commission. 

Donald S. Clark 

Secretary 

[FR Doc. 2010–25000 Filed 10–14–10; 8:45 am] 

BILLING CODE 6750–01–S 

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