The rating game: Challenges in green certification
By Joseph Eckhardt
Stoel Rives LLP
Many are eagerly waiting for the Federal Trade Commission to officially adopt its new Green Guides. In particular, there is a great deal of anticipation about the new guidance on the issue of green seals and certifications.
In the proposed guides, released last year, the FTC proposed a new rulebook on environmental certifications, but the rules are not official yet, as the agency is still reviewing the guides. The FTC 2011 annual report released on April 1 briefly mentions the new Green Guides but reveals nothing about when they will become official. Meanwhile, some interesting things have happened in the economy regarding green certifications in recent months, reflecting challenges and opportunities in choosing a green certification — and above all — serving as a reminder that the FTC is only one player on this stage.
What Not to Do
It should be obvious to anyone that an unsubstantiated certification is risky. Even without the benefit of the new Green Guides and its advice on seals and certifications, the FTC prosecuted a sham certification program in January, which sold the "Tested Green" certification to interested buyers without imposing any environmental standards.
Then there is the case of the "Greenlist" self-certification SC Johnson used on labels for its household cleaning products. A class-action lawsuit against SC Johnson, brought by California consumers, is proceeding to trial this year on the theory that the self-certification was not adequately disclosed on product labeling, and thus misled consumers into thinking that the Greenlist program was independently administrated. SC Johnson unsuccessfully attempted to have the case dismissed last year.
Joseph (“Jay”) Eckhardt is an attorney and the editor of the Green Guides resource page at Stoel Rives LLP. Sponsored by the University of Oregon School of Law, Green Business Initiative, and the Sustainable Future and Antitrust & Trade Regulation sections of the Oregon State Bar, he will be making a free presentation on the new FTC Green Guides at the U of O White Stag Building, in downtown Portland, on April 21, 2011.
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