Del Percio 2011 Greenbuild Legal Forum Presentation - FTC Green Guides

by Stephen Del Percio on Oct 11, 2011

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This presentation analyzes the recent changes to the FTC Green Guides in the context of marketing green buildings and real estate, using images of actual green building projects to suggest best practic...

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Del Percio 2011 Greenbuild Legal Forum Presentation - FTC Green Guides — Presentation Transcript

2011 Greenbuild Legal Forum
THE FTC GREEN GUIDES:
UPDATE & GREEN BUILDING MARKETING PRIMER
Presented by
Stephen Del Percio, B.Eng., J.D.
Arent Fox LLP
Washington, DC | New York, NY | Los Angeles, CA
October 6, 2011

What are the FTC Green Guides?

Federal regulations setting forth how the Federal Trade Commission will apply Section 5 of the FTC Act (15 U.S.C. §§ 41-51), which prohibits “unfair or deceptive advertising,” in the area of environmental marketing claims
Green Guides first issued in 1992; last updated in 1998
FTC currently reviewing public comments submitted in response to updates proposed in 2010

What are the FTC Green Guides?

General environmental benefit claims
Certifications & seals of approval
Compostable claims
Degradable claims
Free-of and non-toxic claims
Ozone-safe and ozone-friendly claims
Recyclable claims
Recycled content claims
Refillable claims
Source reduction claims

Proposed 2010 additions to the FTC Green Guides

Carbon offsets
Renewable energy claims
Renewable materials claims

How are the Green Guides enforced?

No private cause of action
Section 5 of the FTC Act allows FTC to file administrative actions or lawsuits in federal court
Remedies include injunctive relief, corrective advertising, and civil penalties up to $16K per violation of injunctive order

Will the Green Guides apply to commercial actors?

FTC typically enforces marketing claims made to consumers
However, it has recognized that “many environmental marketing claims are commercial in nature”, and has stated formally that it will “not hesitate to enforce its standards outside of a traditional consumer context”*

*J. Kohm, Associate Director, Division of Enforcement, “Green Marketing: Communicating Environmental Benefits to Effect Change and Sell Product,” ABA Consumer Protection Conference, June 20, 2009

So how do private parties make environmental marketing claims?

By asserting false advertising and/or unfair competition claims
Lanham Act (federal)
Consumer protection statutes (state)
Typically consumer class actions alleging performance levels or environmental benefits advertised cannot be achieved under standard operating conditions
Illustrative cases
Paduano v. Am. Honda Motor Co., 169 Cal. App. 4th 1453 (2009) (hybrid gas mileage; companion class action )
Suntech Solar v. Solar Tech Co., No. 08-CV01582 (S.D. Cal. 2008) (non-consumer trademark dispute)

Is there anything in the Green Guides specific to real estate?

No, but USGBC did provide comments to FTC relating to third-party certification and seals in the context of:
Improper claims of LEED product certification
Improper claims of LEED building certification
Improper claims of professional accreditation
Misleading comparisons of rating systems and certification programs

How does environmental marketing intersect with real estate?

Some takeaways

Updates to the FTC Green Guides are still pending
Private parties, including non-consumer parties, seeing increased value in environmental marketing claims, and will assert rights vigorously
FTC will not hesitate to police non-consumer conduct
More specific guidance about green building marketing is inevitable

Thank you!
Stephen Del Percio
delpercio.stephen@arentfox.com
www.greenrealestatelaw.com
@StephenDP

Del Percio 2011 Greenbuild Legal Forum Presentation - FTC Green Guides

by Stephen Del Percio on Oct 11, 2011

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Del Percio 2011 Greenbuild Legal Forum Presentation - FTC Green Guides — Presentation Transcript