PFAS (per- and poly-fluoroalkyl substances) have garnered significant national attention in the last few years. PFAS have made recent headlines in multi-million dollar settlements, Biden campaign promises, proposed EPA rules, congressional hearings, and state-level regulatory efforts across the country. For more about these activities and further background on PFAS please see this previous post.1 Growing public attention to PFAS (and thus, PFAS presence in consumer products) is consistent with recent trends in consumer demand for environmentally friendly or “green” products. Businesses have responded to this interest in green products by increasing their environmental marketing efforts, particularly with respect to highlighting the absence of a PFAS known as PFOA (perfluorooctanoic acid). But with a larger spotlight on a PFAS family consisting of thousands of unique chemicals, businesses should take care to manage how they advertise product information to consumers to avoid running afoul of U.S. regulations against deceptive advertising. The Federal Trade Commission’s (“FTC”) Guides for the Use of Environmental Marketing Claims (the “Green Guides”) set forth federal guidance for businesses to help navigate issues like this one.2
Background on the Green Guides
The Green Guides were first issued in 1992 and lay out general principles businesses should consider when making an environmental claim about a product. The Green Guides also include guidance on how businesses should expect consumers to interpret specific claims and, importantly, how businesses can appropriately limit or qualify their environmental marketing claims to avoid misleading consumers. The Green Guides are not FTC rules or regulations, rather, they serve to warn about the types of marketing claims the FTC might find deceptive and therefore be in violation of Section 5 of the FTC Act (“Section 5”).3 The FTC can bring an enforcement action if it believes that all reasonable interpretations of an environmental marketing claim are not truthful, are misleading, or are otherwise “not supported by a reasonable basis.”4 Accordingly, any business looking to avoid an FTC enforcement action over its PFAS marketing (or any environmental marketing) should take care to review the Green Guides.
JD Supra, 8 April 2021