FTC Proactive and Preemptive on Green Certifications

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The Federal Trade Commission (FTC), America’s consumer watchdog agency, has historically been ahead of the curve on greenwashing.

In 1992, it first published its Guides for the Use of Environmental Marketing Claims, commonly know as the Green Guides, which provide a framework for green marketers to formulate permissible environmental benefit claims for products and services.

Since then, the agency has been actively pursuing greenwashers, with an aggressive campaign in the 1990s against deceptive environmental marketing claims including enforcement actions targeting ads for plastic grocery bags, aerosol cleaning and beauty products, packaging and tableware products, laundry detergents, and disposable diapers.

More recently, the FTC has occasionally taken alleged greenwashers to court; it brought a recent action for misleading environmental benefit claims against an LED manufacturer.

So it comes as no surprise that the agency would be proactive in the area of green certification seals.  Recently, the FTC sent warning letters to five providers of such seals and 32 businesses using those seals.

Certification seals, or marks, are a special species of trademark.  Unlike ordinary trademarks, which indicate the commercial source of a product, certification marks communicate to the consumer that the products to which they are affixed meet certain manufacturing or quality standards.

Examples of popular certification marks are the LEED certification, owned by the U.S. Green Building Council and Energy Star, owned by the U.S. Environmental Protection Agency:

Energy Star

This preemptive move consisted of the letters, which alerted the providers and businesses that the certification seals at issue could be considered deceptive and may not comply with the Green Guides.

The FTC announced the warning letters last month, but noted that it was not conducting any enforcement actions at this time.  The FTC did not disclose the names of the companies to which it sent the letters.

The press release provides examples of two hypothetical green seals, potentially deceptive on the right and not deceptive on the left:

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The press release also mentions the agency’s new blog, Performing Seals, which helps marketers understand how certification seals can comply with the Green Guides.

Eric Lane Avatar

Eric Lane

Eric Lane, the founder and principal of Green Patent Law, is an intellectual property lawyer and registered U.S. patent attorney in New York and is a member of the bar in New York and California. Eric has more than two decades of experience working with wind, solar PV, CSP, biofuels, and geothermal, energy storage technologies, carbon capture and sequestration, medical devices, data communications, mechanical, chemical, internet and software.