FTC's information-gathering process was completed in the fall when the results of a consumer perception study arrived, said James Kohm, director of the commission's enforcement division, in an interview. The commission has begun deliberating on revisions, he said, but no timeline has been announced for their release or implementation.
FTC takes action on relatively few environmental cases. Around 45 complaints have been filed under the Green Guides since their initial implementation in 1992, according to commission data.
While the complaints might only scratch the surface of greenwashing, Juska said, they serve as a deterrent. She said Greenpeace would like to see the Green Guides become stricter, but FTC could achieve the same goal by cracking down on greenwashing using the standards that are already in place.
"The Green Guides themselves serve as great guidelines," Juska said. "But if they're not being enforced, they're not useful."
As part of its environmental enforcement campaign last year, FTC went after Kmart Corp., which ultimately agreed to change the marketing for a line of house-brand paper plates. Kmart had advertised the plates as biodegradable, which FTC deemed misleading because the plates would not usually decompose in municipal solid waste facilities, where about 90 percent of garbage is disposed.
The commission filed two other complaints over the biodegradability of products, as well as four against companies using environmental claims in the marketing of bamboo clothing. In all four of those cases, FTC argued that because the clothing material had been made from bamboo into rayon using harsh chemicals, consumers were being misled by claims that the use of bamboo was environmentally friendly.
Stricter guidelines could signal an intention to step up enforcement, but revisions would also have an impact beyond the agency's own enforcement mechanisms, environmental attorneys say.
California state law has incorporated the Green Guides into its own environmental marketing laws, as has Indiana. The statutes defer to the Green Guides whenever certain environmental marketing claims are made, opening up violators of the Green Guides to criminal penalties and civil suits rather than just administrative action by FTC.
In emerging industries, where there is little legal precedent, courts would likely look to federal guidelines even if they lack the weight of law, said Brad Mondschein, an alternative energy and green development attorney at Hartford, Conn.-based Pullman & Comley LLC.
"The Green Guides would become extremely persuasive to a court, especially in the early cases, because the courts would otherwise have very little guidance to go on," said Mondschein, who has written about the guidelines. "While they certainly won't be definitive, I would think they probably hold a lot of sway."
FTC's consideration of guidelines for the marketing of renewable energy credits and carbon offsets has prompted particular debate, most of it hinging on the lack of a regulatory framework to ensure that the purchase of offsets actually reflects greenhouse gas reductions. Various studies have suggested a significant fraction of offsets are linked to projects that were already close to completion or that would have been completed regardless.
Terrapass Inc., a San Francisco-based carbon offset provider, submitted a letter to FTC during the comment process saying the integrity of the market depends on the interpretation of this concept, typically referred to as "additionality."