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FLEXO Magazine : March 2009
PLANTS & PROCESSES locally available recycling options. Several of to day's most popular claims, including "carbon neutral," "sustainable" and "renewable," are not addressed in the current Green Guides and are being con- sidered by the FTC for inclusion in the revised guides expected to be issued mid-to late-summer, 2009. Direct legal liability lies with the entity making the marketing claim. In other words, flexographers (and the allied industries) will be directly responsible for marketing claims made on their products, whether it is to other businesses or direct consumers. In addition, by contract or other legal mechanism, legal liability can flow through the direct marketer to the supplier, and vice-versa. In other words, you can be liable for claims made by your suppliers, should you choose to use them in your marketing efforts. Similarly, you may be liable for marketing claims made to your customers' customers, if you were the original source of the marketing claim. Ultimately, the Green Guide's touchstones are that the market- ing claims should be specific and substantiated. General environ- mental claims like "eco-friendly," "environmentally preferable," "environmentally friendly [production] system," and "10 percent less packaging" each convey a wide-range of meanings to differ- ent consumers and are therefore difficult-to-impossible to prove, and are ripe for regulatory enforcement. Specific environmental claims such as "10 percent less packaging than last year's model" significantly reduce the possibility of misinterpretation and can be substantiated with actual measurements or scientific proof. THIRD PARTY CERTIFICATIONS The use of third party certifications or "seals of approval" can assist in proving that your claim is not deceptive. However, you are ultimately responsible for all claims that you make, even if the claim was provided or verified by a supplier or other third-party. Notably, the FTC already advises that "seals-of-approval should be accompanied by information that explains the basis for the award" and urges that "if the seal-of-approval implies that a third party has certified the product, the certifying party must be truly independent from the advertiser and must have professional ex- pertise in the area that is being certified." The FTC has also advised that third-party certifications do not insulate an advertiser from Commission scrutiny or eliminate an advertiser's obligation to ensure for itself that claims communi- cated by the certification are substantiated. The printing industry is particularly susceptible to over-reaching green marketing claims made by its component suppliers, especially for those components that may not be backed by a strong third party certi- fication process, such as ink and coatings. CURRENT ENFORCEMENT The FTC has only brought 37 enforcement actions under the Guides; the most recent in 2000. However, in recent years, green marketing claims have rivaled "We're NO.1" claims in cases brought to the National Advertising Division of the Better Business Bureau (BBB). In fact, the BBB reviews about 150 cases per year relating to green marketing claims, almost all initiated by competitors. The prevalence of false green marketing claims has become so great that it has spawned its own language, including the suddenly ubiquitous phrase "Green-washing." While regulatory enforcement was clearly not a priority dur- ing the Bush Administration, it will definitely be a focus of the Obama Administration. In public statements, the FTC has been implying that enforcement of the revised Green Guides will be vigor- ous; it is widely speculated that the FTC will seek to punctuate the forthcoming release of the revised Green Guides with several "high pro- file" prosecutions, along with other prosecutions specifically targeted to setting precise legal precedents. The percentage of green marketing claims that would fail FTC muster varies wide- ly-one environmental non-profit organization put the figure at 99 percent! While I personally doubt that estimation, there is no question that over the last few years, many companies' marketing claims got a "green light" when yellow or even red was warranted. This will soon come to an end, and it is likely that the FTC's forthcoming enforcement initiative will at least partially target the printing industry. It is likely that the Green Guides will contain extensive revi- sions as they apply to packaging. For those companies who supply packaging components or convert flexible packaging, it is likely that a much more proscriptive set of rules will be in place in the near future. If this happens, not only will current marketing claims need to be evaluated, but it is highly probable that cus- tomer inquires regarding products used in or as packaging will increase dramatically. In all likelihood, registration with the SGP Partnership as an SGP Printer will continue to provide flexographers an opportunity to distinguish themselves from their competitors in an FTC- acceptable manner. While the SGP Partnership program may be tweaked after the re-issuance of the Green Guides (particularly if the FTC issues additional guidelines on third-party certifications or the term "sustainable"), the program appears to be on relatively solid footing. Depending on precisely what the revised Green Guides require and how hard the FTC pushes its enforcement activities, it is possible that in five-to-10 years that this program will become a common industry benchmark. . The FTC has issued this 36-page brochure explaining the environmental guidelines portion of the U.S. Code of Federal Regulations, a.k.a. the Green Guides. ABOUT THE AUTHOR: Mark C. Hammond is an environmen- tal attorney with Drinker Biddle 8( Reath, LLP, a.fùll-seroice national law firm. Hammond assists a number of national and regional print- ing companies by representing them in administrative permitting and enforcement matters, and has increasingly been assisting clients, including several printers, with issues relating to sustainability and "green" marketing claims and programs. He lectures on sustainable development, air, and related issues to regional and national trade as- sociations, and his articles on environmental regulatory topics appear frequently in national industry trade publications. MARCH 2009 - www.f I exog ra p hy.o rg FLEXO
Sustainable Winter 2009