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PROPOSED REVISIONS TO THE GREEN GUIDE (FTC)

PROPOSED REVISIONS TO THE GREEN GUIDE (FTC)

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Published by: Adrián García on Jan 04, 2011
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11/11/2011

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Numerous commenters recommended that the Commission provide further guidance

regarding free-of claims. Several noted that the Guides address no-CFCs claims only in an

example and suggested that the Commission address free-of claims generally.

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Several commenters discussed the appropriate standard for determining whether a

product is free of a substance. One argued that a product is not free of a substance if the

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substance is present at greater than background or regulated levels. Similarly, one commenter

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noted that under the ISO 14021 standard, marketers can make free-of claims only if the

“specified substance is no more than that which would be found as an acknowledged trace

contaminant or background level.” Finally, another contended that free-of claims should be

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substantiated by evidence that: “(1) none of the chemical was added during the manufacturing

process, and (2) when tested, the product does not emit or off-gas levels of the chemical that are

Johns Manville, Comment 536013-00034 at 2.

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See, e.g., GPI, Comment 534743-00026 at 11; NAIMA, Comment 533431-00042 at

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10-11; Saint-Gobain, Comment 533431-00037 at 9-10.

CSPA, Comment 533431-00049 at 4; Johns Manville, Comment 536013-00034 at 2;

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NAIMA, Comment 533431-00042 at 10; Saint-Gobain, Comment 533431-00037 at 9-10;

TerraChoice, Comment 533431-00040, attached report “The Six Sins of Greenwashing” at 4.

CSPA, Comment 533431-00049 at 4.

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NAIMA, Comment 533431-00042 at 10.

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ACC, Comment 533431-00023 at 4; Formaldehyde Council, Comment 533431-00047

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at 2-3; Vinyl Institute, Comment 533431-00046 at 2-3.

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material to consumers, i.e., in the context of health considerations, no more than background and

applicable health-based standards for safe exposure.”

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Several commenters stated that truthful free-of claims may be misleading. For example,

some commenters raised concerns that a truthful free-of claim could mislead consumers if the

marketer does not disclose that the product contains other substances that may be harmful to the

environment. Others stated that a claim that a product is free of a substance may be deceptive

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if the substance is not typically associated with the product and competitors’ products do not

typically contain the substance. One commenter noted that the ISO 14021 standard does not

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permit free-of claims if the substance has never been associated with the product. Another

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commenter illustrated this point with an “extreme hypothetical,” in which a marketer’s claim

that its fruit juice does not contain cyanide could mislead consumers by suggesting that other

fruit juices do.

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Several commenters raised two concerns that unqualified free-of claims imply other

environmental claims. First, they stated that while a free-of claim explicitly conveys that a

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product does not contain a certain substance, it also implies that a product is superior to other

Id.

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Id.

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Id.

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Id.

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Eastman, Comment 533431-00051 at 2-3; Johns Manville, Comment 536013-00034

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at 3-5.

Johns Manville, Comment 536013-00034 at 3.

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Eastman, Comment 533431-00051 at 2; Johns Manville, Comment 536013-00048

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at 3-4.

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products that contain the substance. They argued that free-of claims should be qualified to

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inform consumers of the basis of the comparison, such as whether the free-of claim is relevant to

the environmental or health risks or the performance of the product. Second, they asserted that

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free-of claims are often general claims of environmental benefit, i.e., claims that products

without the specified substance are good for the environment. They recommended that such

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claims not be permitted without qualifying language that substantiates both the express claim

and all implied claims.

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Other commenters, however, stated that free-of claims may provide valuable information

to consumers and do not necessarily imply additional comparative or general environmental

benefit claims. One commenter explained that these claims should be qualified only if they

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are susceptible to more than one interpretation by a non-insignificant portion of the target

audience and at least one such interpretation is false, misleading, or unsubstantiated. They

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recommended that the Commission not establish a bright-line rule requiring that marketers

qualify all free-of claims.

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NAD, Comment 534743-00029 at 4.

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Although the NAD determined that the formaldehyde-free claim was appropriate, it

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also found that the manufacturer should discontinue comparative claims that, without proper

support, raised doubts about the safety of competing products. Id.

EPA-SPN, Comment 536013-00062 at 4; Seventh Generation, Comment 533431-

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00033 at 6; TerraChoice, Comment 533431-00040, attached report “The Six Sins of

Greenwashing” at 3.

TerraChoice, Comment 533431-00040, attached report “The Six Sins of

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Greenwashing” at 3.

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The National Advertising Review Council submitted comments summarizing the

National Advertising Division (“NAD”) cases addressing environmental claims, including

several cases that involved claims that products were free of, or did not contain, certain

substances. In one case, the NAD found that a manufacturer adequately substantiated a

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formaldehyde-free claim for insulation. The NAD concluded that it was appropriate for the

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advertiser to make a formaldehyde-free claim, even if the insulation emitted a de minimis

amount of formaldehyde because it would be inconsequential to consumers. The NAD noted

that the determination of whether an amount is de minimis depends on the substance at issue and

requires a case-by-case analysis.

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