The Federal Trade Commission (FTC) recently unveiled long-awaited proposed revisions to its Guides for the Use of Environmental Marketing Claims, known as the “Green Guides,” which were last updated in 1998 (available at http://www.ftc.gov/os/fedreg/2010/october/101006green guidesfrn.pdf). The Green Guides help marketers comply with basic advertising law principles when making “green” advertising claims by ensuring claims are true and substantiated. As part of its revision effort, the FTC relied on public workshops, comments and a study of consumers’ perceptions of environmental claims. Moreover, the FTC has requested public comments on the proposed revisions, through December 10, 2010, after which time the FTC will decide what changes to make final.

We previously addressed the revised Green Guides’ position on:


We now turn to “Recycled Content” claims.

            So… exactly how much “Recycled Content” can you claim?

The FTC is, not surprisingly, concerned about the potentially misleading nature of recycled content claims. For example, a significant minority of consumers (35%) will take an unqualified phrase, such as XYZ product is “made with recycled materials,” to mean that the entire product is made from recycled materials, as opposed to just a portion of the product. Clearly consumers may take away a far broader (mis-)understanding of a green claim than intended by the advertiser, a notion which pervades the Green Guides.

Under the current Green Guides, a marketer can 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 (post-consumer). Marketers must substantiate that the materials used would otherwise have entered the solid waste stream if a pre-consumer recycled content claim is made (although a distinction between pre- and post-consumer is not necessary). Substantiation is also required if a claim involves a specific amount of recycled content.

Where a product is only partially made from recycled content, advertisers must qualify a recycled content claim if consumers may misinterpret the claim to mean the entire product is made from recycled content.

To calculate the percentage of the recycled content used, the original Green Guides suggest using the annual weighted average. Some commenters suggested permitting alternative calculation methods, for example using the average amount of recycled content within an entire product line, or across all of a manufacturer’s product lines. The FTC rejected these alternative proposals, because advertisers could make claims about certain products containing recycled content which are simply false. That is, a specific product advertised as incorporating recycled content may not have any recycled content under the alternative calculation proposal, if the advertiser chose to incorporate recycled content into its other products. However, the Commission requested comments on whether recycled content claims based on the current calculation method are misleading, and if so, should the claims be qualified. In the absence of other consumer perception studies providing a basis otherwise, the FTC proposes keeping the same standard on advertising recycled content that has been in place since the original Green Guides were issued in 1992.

The FTC also elaborates revisions on another interesting area of debate, demonstrating that the law cannot always keep up with changes in the marketplace. Commenters raised concerns about basing the definition of “recycled content” on “diversion from the solid waste stream,” in light of innovations in manufacturing. These innovations, for example, permit companies effectively to reuse waste materials from the manufacturing process in a lower value form before those materials actually enter the solid waste stream, so they are not technically being “diverted.” This begs the question of whether such materials can still be counted as “recycled content” when they never actually leave the manufacturing process, but are nevertheless still “waste” that is simply re-used or re-purposed by the manufacturer. Modern innovations such as these reveal ambiguities in the existing Green Guides. While the FTC declined to provide more definitive guidance at this time, it did solicit comments on what changes should be made to the existing guidance as well as consumer perception evidence relating to “solid waste stream” and pre-consumer recycled content claims.

In the end, the proposed, revised Green Guides do not incorporate major changes in the “recycled content” claims area. Marketers should still take care when making such claims, though. Specifically, unless an entire product is made with recycled content, marketers are advised to qualify the claims (e.g. specify the percentage).

As we continue to review and digest the FTC’s revisions, we will issue new Alerts on discrete topics.

Kilpatrick Stockton’s Advertising, Promotions, & Media group represents advertisers and brand marketers in a broad range of industries, and the group’s attorneys have extensive experience in advertising, technology, intellectual property, and media law. Please feel free to contact us for more information about the issues contained in this Alert.

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