June 5, 2013

Green Guidance: The FTC Comments Generally on Certified Sustainable Seafood Labeling and Third-Party Environmental Certifications

Consumer Advertising Law Blog

In February, we blogged about the Marine Stewardship Council's (MSC) Certified Sustainable Seafood label, which indicates that the fishery from which the seafood came meets MSC's criteria for sustainability. In that post, we reminded marketers that they should keep an eye on the Federal Trade Commission's (FTC's) revised Green Guides when developing and promoting environmental certifications or seals like MSC's. While the Green Guides do reflect the FTC's thinking on environmental marketing claims, MSC also requested public comment on its Certified Sustainable Seafood program.

The FTC provided comments in a May 30 letter (see also this post on the FTC's Business Center Blog). In its letter, the FTC explicitly did not take a position on whether the MSC sustainability label complies with the FTC Act, stating only that the label must do so. To ensure the seals stay on the right side of the law, the FTC recommended that MSC's seals, like all such certifications or seals, should comply with the Green Guides. The FTC explained that in its most recent update of the Green Guides, it placed "particular emphasis on the use of third-party seals and certificates," such as MSC's label. So long as they comply with the law, these seals or certificates can benefit consumers, providing easily identified and understood markers of a product's environmental benefits and allowing consumers to choose between competing products on that basis.

Because of the label's potential usefulness to consumers, the FTC's letter drew from the Green Guides to provide the following guidance to MSC and other third-party certifiers. First, the standards for certifications must be "grounded in sound science, which should be objectively applied." Second, any certifications or seals must "convey information that is truthful, and that does not deceive consumers." MSC, like all advertisers, is "responsible for both the express and implied claims taken from their advertisements." According to the FTC, third-party certifiers like MSC should put themselves in the shoes of their audience when evaluating what claims consumers may take away from their seals or certification, and must consider the "net impression" of their seals or certificates. In other words, "If a certifier permitted practices that reasonable consumers found inconsistent with their interpretation of the seal, the certifier should change the seal or change the certification process to comport with that understanding."

Although the FTC's comments did not specifically examine MSC's program, the Commission's comments provide a general reminder of the consumer protection principles that the FTC applies to environmental seals and certificates.

© Arnold & Porter Kaye Scholer LLP 2013 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

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