Retail Leaders Weigh in on the FTC’s Proposed Updates to the Green Guides
The Federal Trade Commission (“FTC”) is set to release an updated version of its Guides for the Use of Environmental Marketing Claims this year. These “Green Guides” — which haven't been updated in over a decade — do not have the force of law but provide marketers with guidance on how to make properly substantiated and nondeceptive environmental advertising claims. Now that the FTC is ready to update its guidance, it has sought comments on its proposed revision and stakeholders have responded.
What do retailers want? Based on comments from leading retail industry organizations like the Retail Industry Leaders Association (RILA), National Retail Federation (NRF), and Footwear Distributors & Retailers of America (FDRA), retailers want more concrete definitions, a refrain from the creation of a Green Guides-based rule, and retailer safe harbors.
Retailers Want Definitions
One key topic for retail leaders was the need for new and updated definitions in the Green Guides. They advocated for deeper guidance on specific terms such as “degradable,” “recyclable,” and “regenerative,” as well as claims that haven't yet been addressed by the FTC, including “organic,” “clean,” and “sustainable.”
Both the NRF and FDRA pointed out that the vagueness surrounding the term “sustainable” has greatly contributed to greenwashing. Over 200 commenters also stressed the need for guidance on “sustainable.” The FTC determined that it didn't have sufficient evidence of consumer perception to offer guidance about “sustainable” claims in 2012, but there have been significant changes over the last decade that may allow the FTC to make a more educated determination of this definition in its updates to the Green Guides. Retailers should be cognizant and cautious that with more definitions might come more scrutiny. If the Green Guides revisions more clearly define all these terms, marketers must carefully evaluate whether any current or planned uses of them fit the newly defined bill.
Retailers Don't Want a Rule
Following the FTC’s recent loss of its ability to leverage Section 13(b) of the FTC Act to obtain monetary relief, the agency has turned to the creation of rules — which become federal law — to prohibit unfair and deceptive practices. The FTC, in its request for comments, asked the public for its opinion on whether the Green Guides should remain guidance or become a legally enforceable rule (which allows the Commission to levy fines in the form of civil penalties upon violators). The retail industry answered “no.” The RILA urged the FTC to refrain from rulemaking, saying a “rule will be inflexible to an evolving landscape, and updating the rule will cause undue burdens on the FTC.” The NRF echoed this by citing the need for the FTC to stay limber in the face of new communication tools and the advancement of material and manufacturing technologies.
The NRF and RILA were at odds with the majority of commenters who addressed this question (76 percent supported a rulemaking), though most commenters were individuals representing a consumer perspective. Retailers should be aware that rulemaking is possible and understand the heightened enforcement risk should the FTC go that route.
Retailers Want Safe Harbor Provisions
The RILA and NRF were united in their call for safe harbor provisions that would reduce the burden on retailers to comply with the Green Guides. The RILA put forth the example of a supplier that provides a retailer certification of a product’s compliance with an internationally recognized standard. The RILA argued that obtaining the certification from the supplier should satisfy a retailer’s obligation to substantiate relevant claims, thereby creating a safe harbor. The NRF agreed, stating that retailers often lack expertise and ability to determine claim accuracy, and need to be able to rely on third-party certifications.
The FTC has given some indications that it might not support a safe harbor. In recent updates to the Guides Concerning the Use of Endorsement and Testimonials in Advertising, the FTC plainly called out intermediaries, such as advertising agencies, and their liability for their role in perpetuating deceptive endorsements. The FTC, in furtherance of an apparent desire to make more parts of the commerce chain responsible for advertising, might resist the call for a safe harbor. Retailers should then keep a close watch to see what level of liability they will shoulder with the updated Green Guides.
Tiffany Ferris is a partner and chair of the Trademark and Advertising Practice Group at Haynes Boone, an international corporate law firm. Joseph Lawlor is a partner at Haynes Boone. Emily Ketterer is an associate in the Intellectual Property Practice Group at Haynes Boone. Ariella Kleiman is an associate in the Intellectual Property Practice Group at Haynes Boone.
As the chair of the firm's Trademark and Advertising Practice Group, Tiffany's practice focuses on advising clients in all aspects of brand management and promotion. From analyzing potential risks associated with advertising claims to evaluating the availability of a potential trademark, Tiffany works to help her clients build, maintain, and promote their brands. Clients rely on her through all stages of their brand's lifecycle, including the selection and protection of brands, as well as the creation and defense of advertising and promotional programs. Tiffany has been recognized by World Trademark Review’s WTR 1000, Globe Publishing, Ltd. (2023) and noted that she “brings her mastery of advertising law to bear when advising on commercial trademark issues.”
Tiffany counsels clients in the design and development of product packaging and labeling, including on compliance with FDA and FTC regulations and the intellectual property implications of label design. She also reviews national advertising materials in all forms of media and advises on strategies intended to reduce the risk of a competitor or consumer demand, class action, or regulatory enforcement action. Not just a counselor, Tiffany regularly appears before the National Advertising Division (NAD), representing clients in advertising-related disputes.
No matter the topic at hand, Tiffany is mindful of her clients’ overarching goals and business concerns. She has considerable practical, business-minded experience with advertising, marketing, and product and packaging development gained from her time as a legal secondee to various of her clients and previous work with Reynolds Packaging Group, formerly a division of Alcoa.
Joe is a trusted advertising and IP lawyer with a practice that covers all aspects of marketing and branding, including disputes, transactions, and compliance. Joe litigates high-stakes advertising, trademark, and media disputes in federal court, the National Advertising Division (NAD), and the Trademark Trial and Appeal Board (TTAB). He also counsels clients on advertising claims and substantiation, marketing and sponsorship agreements, IP licenses, social media, endorsements, and influencers. Clients turn to Joe for guidance on cutting-edge advertising and social media issues because of his deep substantive knowledge and unique skillset that spans from counseling and transactions to trials and appeal. His clients include well-known brands in consumer goods, telecommunications, higher education, media, pharmaceuticals, professional sports, and fintech.
Joe relies on sound judgment and an analytical business-focused approach as he represents clients through all phases of litigation in federal court, the NAD, and the TTAB. Joe has tried and won trials in both federal and New York state court. Joe has also successfully tried appeals to the Second and Third Circuit Courts of Appeal. Joe’s recent experience includes the successful representation of a global skin care brand in a federal jury trial and complete victory before the Third Circuit Court of Appeals in a trademark dispute to protect one of its most well-known brands.
Joe is an experienced practitioner before the NAD representing both advertisers and challengers. Joe’s NAD experience includes the representation of a national grocery chain against the leading international wholesale club and the representation of a publicly-traded global medical company specializing in eye care against one of its primary competitors. In the TTAB, Joe’s range of experience includes representing one of the largest wireless telecom companies in a dispute relating to a mark for one of its core cellular business lines.
Joe often represents journalists, media outlets, and public figures in federal court. For example, Joe represented a journalist wrongfully detained by the U.S. Government after exercising his First Amendment rights to provide an interview to PBS. In a widely-publicized matter, Joe also successfully secured complete dismissal of charges against an individual indicted on multiple counts of securities fraud in the Southern District of New York after a ruling that his client’s Fourth Amendment rights were violated by the FBI and U.S. Attorney’s Office.
Joe is an active member of the Association of National Advertisers (ANA) and International Trademark Association (INTA), where he is a member of the Alternative Dispute Resolution Committee and Chair of the Online Dispute Resolution Subcommittee. When not practicing law, Joe can likely be found hiking or fishing in the Catskills with his family and Westie or fervently following college basketball.
Emily Ketterer is an associate in the Intellectual Property Practice Group in Haynes Boone’s Dallas office. Her practice focuses on a variety of trademark and advertising matters in varied industries, including technology, fashion, healthcare, and food and beverage. She assists clients with trademark clearance, prosecution, management, and enforcement, as well as advertising clearance.
Before joining the firm, Emily gained experience in advertising, marketing, and social media management as a copywriter for Rue La La and Saks Fifth Avenue OFF 5TH.
Emily’s interests lie in international brand management. While at Tulane University Law School, she wrote an article for the Tulane Journal of International and Comparative Law on trademark issues in the United Kingdom post-Brexit.
Ariella Kleiman is an associate in the Intellectual Property Practice Group in Haynes Boone’s New York office.
Her practice focuses on a variety of trademark matters in varied industries, including technology, fashion, media, and sports. She assists clients with trademark clearance, prosecution, management, and enforcement.
