US

Relevant legislation or guidelines

• Section 5 of the U.S. Federal Trade Commission ("FTC") Act prohibits unfair and deceptive acts and practices in or affecting commerce.
• There are a number of similar state laws, known as "Little FTC Acts."
• The FTC’s Guides for the Use of Environmental Marketing Claims (“Green Guides”), 16 Code of Federal Regulations ("CFR") § 260, set forth the FTC's interpretation of deceptive or misleading practices under Section 5 of the FTC Act in the context of environmental marketing claims.
• Section 43(a) of the Lanham Act provides a private right of action for commercial entities who are injured by false or misleading statements of fact in commercial advertisements.

Is there any upcoming relevant legislation or guidelines?

• The FTC recently initiated (as of December 2022) a periodic review of its Guides for the Use of Environmental Marketing Claims (“Green Guides”).
• U.S. Securities & Exchange Commission's (SEC) Climate-Related Disclosures Rule: The SEC’s proposed rule, expected to be finalized in 2023, would require US-registered companies and foreign private issuers to provide certain climate-related information in their registration statements and annual reports.
• Under a California law set to take effect January 1, 2024, virtually all products or materials that display the recycling symbol or are marketed as recyclable will need to meet detailed recyclability criteria.

Who are the responsible authorities or bodies?

• The U.S. Federal Trade Commission (FTC);
• The National Advertising Division of the Better Business Bureau (“NAD”).

What are the enforcement measures?

• The U.S. Federal Trade Commission can levy civil fines (up to approx. $43,000 per violation) and impose equitable remedies, such as consent decrees, monitoring, disgorgement of profits, corrective advertising, and damages.
• State Attorneys General can seek similar damages under some state laws.

Who can pursue infringements?

• The U.S. Federal Trade Commission (under the FTC Act);
• the SEC;
• State Attorneys General (under state "Little FTC Acts" and consumer protection laws);
• competitors (under the Lanham Act);
• consumers (under state consumer protection laws).

What are the general rules of thumb for green claims?

• Green claims must be truthful and not misleading.
• Green claims must be adequately substantiated.
• Disclosures must be clear and conspicuous.

Do green claims need to be substantiated by evidence?

Yes. Advertisers must have a “reasonable basis” for their green claims and supporting evidence before disseminating them.