Truth in Marketing
Federal Trade Commission
The Federal Trade Commission (FTC) has issued Green Guides to help guide manufacturers in making claims for health and the environment that are truthful and not misleading. The Green Guides are not law but are guidelines for businesses that are marketing their products with health or environmental claims. The guidance provided includes:
- general principles that apply to all environmental marketing claims;
- how consumers are likely to interpret particular claims and how marketers can substantiate these claims; and
- how marketers can qualify their claims to avoid deceiving consumers.
The Guides were first issued in 1992 and were revised in 1996, 1998, and 2012.
Unfortunately, nontoxic claims are made every day without substantiation. Many products claim to be nontoxic without even listing their ingredients so consumers can research the ingredients for themselves.
Here is the portion that applies to “nontoxic” claims.
Code of Federal Regulations
PART 260– GUIDES FOR THE USE OF ENVIRONMENTAL MARKETING CLAIMS
260-10 Nontoxic Claims
260.9 Free-Of Claims
§ 260.9 Free-Of 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. 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: (1) 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 (2) the substance has not been associated with the product category. (
c) Depending on the context, a free-of or does-not-contain claim is appropriate even for a product, package, or service that contains or uses a trace amount of a substance if: (1) the level of the specified substance is no more than that which would be found as an acknowledged trace contaminant or background level; (2) the substance’s presence does not cause material harm 4 that consumers typically associate with that substance; and (3) the substance has not been added intentionally to the product.
Example 1: A package of t-shirts is labeled “Shirts made with a chlorine-free 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 chlorine bleaching. The claim overstates the product’s benefits because reasonable consumers 21 likely would interpret it to mean that the product’s manufacture does not cause any of the environmental risks posed by chlorine bleaching. A substantiated claim, however, that the shirts were “bleached with a process that releases 50% less of the harmful byproducts associated with chlorine bleaching” would not be deceptive. 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. Further, the seller has substantiation that the trace amounts of formaldehyde emitted by the insulation do not cause material harm that consumers typically associate with formaldehyde. 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.
§ 260.10 Non-Toxic Claims.
(a) It is deceptive to misrepresent, directly or by implication, that a product, package, or service is non-toxic. Non-toxic claims should be clearly and prominently qualified to the extent necessary to avoid deception.
(b) 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 marketer advertises a cleaning product as “essentially non-toxic” and “practically non-toxic.” The advertisement likely conveys that the product does not pose any risk to humans or the environment, including household pets. If the cleaning product poses no risk to humans but is toxic to the environment, the claims would be deceptive