Which groups have the force of the law behind them with regard to regulating advertising?

1.

E.g., Jamie A. Grodsky, Certified Green: The Law and Future of Environmental Labeling, 10 Yale J. on Reg. 147, 149 (1993).

It's Too Easy Being Green: Defining Fair Green Marketing Practices, Hearing Before the Subcomm. on Commerce, Trade, and Consumer Protection of the H. Comm. on Energy and Commerce, 111th Cong. 1-22 (2009) (statement of Rep. Bobby L. Rush, Chairman, Subcomm. on Commerce, Trade, and Consumer Protection) [hereinafter Hearing on Green Marketing Practices]; Grodsky, supra note 1, at 150. These environmental marketing claims may relate to the environmental impacts of a product during all or part of its life cycle, such as the effect on the environment of the product's manufacture, distribution, use, or disposal. See International Organization for Standardization (ISO), Environmental Labels and Declarations: How ISO Standards Help 16 (2012), http://www.iso.org/iso/environmental-labelling.pdf.

Id. at 5.

Hearing on Green Marketing Practices, supra note 2, at 6 (statement of Rep. Kathy Castor) ("Consumers have a hard time telling the difference between companies that do the hard work to develop products and manufacturing processes that are more sustainable and environmentally friendly and those companies that simply start printing their labels in green with sustainable written on the label and then charge a green premium for the same old dirty products."); Jack Neff, Consumers Don't Believe Your Green Ad Claims, Survey Finds, Advertising Age (September 16, 2013), http://adage.com/article/news/consumers-green-ad-claims-survey-finds/244172/; Grodsky, supra note 1, at 150. The deceptive use of environmental marketing claims is sometimes referred to as "greenwashing."

Hearing on Green Marketing Practices, supra note 2, at 6 (statement of Rep. Kathy Castor).

See, e.g., Advertising Trends and Consumer Protection: Hearing Before the Subcomm. on Consumer Protection, Product Safety, and Insurance of the S. Comm. on Commerce, Science, and Transportation, 111th Cong. 59 (2009) (statement of Sen. John D. Rockefeller IV) ("Fraud seriously hurts legitimate businesses trying to compete and does lasting damage to our economy.").

For example, the Environmental Protection Agency (EPA) and Department of Energy (DOE) jointly administer Energy Star, which is a voluntary labeling program that seeks to encourage the purchase and manufacture of energy-efficient products. See 42 U.S.C. §6294a. Under the program, certain manufacturers who have entered into a voluntary partnership agreement with the EPA and DOE may affix an Energy Star label to qualified products in order to inform consumers that these products are among the most energy-efficient in a particular category but still perform at least as well as standard models. See id. As a further example, the U.S. Department of Agriculture's (USDA's) Agricultural Marketing Service oversees the National Organic Program, which provides standards governing claims that an agricultural product is "organic." 7 C.F.R. Part 205; see also USDA, Food Standards and Labeling Policy Book (2005) (establishing the department's policy regarding "natural" claims), http://www.fsis.usda.gov/OPPDE/larc/Policies/Labeling_Policy_Book_082005.pdf.

See 15 U.S.C. §1125(a).

For more information on NAD, see http://www.bbb.org/council/the-national-partner-program/national-advertising-review-services/national-advertising-division/.

15 U.S.C. §45. All citations to the FTC Act in the footnotes are to the U.S. Code sections for the FTC Act sections in the main text.

An "unfair act or practice" for purposes of Section 5 or Section 17 of the FTC Act is one that "causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition." Id. §45(n). The FTC considers an act or practice to be unfair when it causes injury to a consumer that (1) is substantial; (2) is not "outweighed by any countervailing benefits to consumers or competition that the practice produces"; and (3) is not an injury that consumers could reasonably have avoided. In re Int'l Harvester Co., 104 F.T.C. 949 (1984) (statement at end of agency order). The FTC may consider whether the unfair conduct violates a public policy that "has been established by statute, common law, industry practice, or otherwise." Id.

The FTC considers an act or practice to be deceptive when there is a "representation, omission or practice that is likely to mislead the consumer acting reasonably in the circumstances, to the consumer's detriment." In re Cliffdale Assocs., Inc., 103 F.T.C. 110, 171 (1984) (policy statement at end of agency order).

15 U.S.C. §45(a). Section 12 of the FTC Act specifically prohibits certain entities from disseminating false advertisements related to "food, drugs, devices, services, or cosmetics." Id. §52. However, for purposes of Section 12, the definition of "false advertisement" excludes product labels. Id. §55(a). The FTC Act contains definitions for "food," "drug," "device," and "cosmetic." Id. §55(b)-(e).

15 U.S.C. §44. For more on the FTC's attempts to enforce the FTC Act against foreign entities abroad that cause injury to U.S. consumers, see "International Enforcement Efforts" below.

15 U.S.C. §57a(b)-(c).

E.g., 15 U.S.C. §46(a)-(b), (f), (h).

In some circumstances, the U.S. Attorney General may (or must) be involved in litigation under the FTC Act. See 15 U.S.C. §56(a), (c).

Promulgation of interpretive rules and policy statements under Section 18(a)(1)(A) requires the commission to find that the unfair or deceptive act or practice is widespread. Id. §57a(b)(3).

15 U.S.C. §57a(a). As noted below, other federal laws direct the FTC to promulgate rules pertaining to specific types of environmental marketing claims. See "Other Laws Enforced by the FTC" below.

15 U.S.C. §57a(b)-(d). Regulations governing the FTC's promulgation of rules under the FTC Act and other federal statutes are located at 16 C.F.R. Part 1, Subparts B-C.

15 U.S.C. §57b-3.

Id. §57a(e), (g).

Id. §46(a)-(b), (f), (h); see also id. §§49-50, 57b-1 (concerning civil investigative demands).

Id. §46(a)-(b), (f), (h); see also id. §§49-50, 57b-1. A "foreign law enforcement agency" is defined as "(1) any agency or judicial authority of a foreign government, including a foreign state, a political subdivision of a foreign state, or a multinational organization constituted by and comprised of foreign states, that is vested with law enforcement or investigative authority in civil, criminal, or administrative matters; and (2) any multinational organization, to the extent that it is acting on behalf of an entity described in paragraph (1)." Id. §44.

15 U.S.C. §45(b).

Id. §45(b). Entities ordered to cease and desist from practices that violate the FTC Act may file a petition in a certain federal appeals court within 60 days of service of the FTC's order that asks the court to set aside the order. 15 U.S.C. §45(c). The judgment and decree of the appeals court may be subject to review by the Supreme Court if it grants certiorari. Id. If the commission believes that a domestic or foreign entity has violated federal criminal law, it must refer the matter to the Attorney General for possible criminal prosecution. 15 U.S.C. §§46(k), 56(b).

Provisions of the FTC Act governing the finality of an order are located at 15 U.S.C. §45(g)-(k).

15 U.S.C. §45(l). The size of the civil monetary penalty was last adjusted for inflation in 2009. 16 C.F.R. §1.98.

E.g., Am. Plastic Lumber, Inc., FTC File No. 132 3200 (July 24, 2014) (decision and order).

E.g., Stipulated Order for Permanent Injunction and Monetary Judgment at 3-14, FTC v. Green Foot Global, L.L.C., No. 2:13-cv-02064 (D. Nev. November 18, 2013).

15 U.S.C. §53(b). The commission may seek a permanent injunction in "proper cases." Id. The act provides somewhat similar authority to prevent dissemination of false advertisements in violation of Section 12 of the FTC Act, which pertains to "food, drugs, devices, services, or cosmetics," with possible penalties. Id. §§53(a), 54. However, this authority does not apply to certain periodical publications, advertising agencies, and other media for the dissemination of advertising. Id. §§53(d), 54(b).

E.g., FTC v. Ross, 743 F.3d 886, 890-92 (4th Cir. 2014). As noted below, Section 19 of the FTC Act explicitly authorizes the FTC to seek consumer redress in court in certain limited circumstances.

The commission may bring a civil suit when the entity violates a rule "with actual knowledge or knowledge fairly implied on the basis of objective circumstances that such act is unfair or deceptive and is prohibited by such rule." 15 U.S.C. §45(m)(1)(A).

Supra note 11.

Supra note 12.

15 U.S.C. §45(m)(1)(A).

Id. §45(m)(1)(B).

Id. §57b.

Id. §57b(b). There is a statute of limitations for consumer redress actions that varies depending on the circumstances of the violation. Id. §57b(d).

FTC, Report to Congress, The U.S. SAFE WEB Act: The First Three Years 5 (2009), http://www.ftc.gov/sites/default/files/documents/reports/u.s.safe-web-act-first-three-years-federal-trade-commission-report-congress/p035303safewebact2009.pdf.

This section does not address injury to foreign consumers by a U.S. entity.

15 U.S.C. §45(a)(4).

See generally Fed. R. Civ. P. 4(f); Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, opened for signature November 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638, 658 U.N.T.S. 163, entered into force for the United States February 10, 1969, http://www.hcch.net/upload/conventions/txt14en.pdf.

See generally Fed. R. Civ. P. 4(k); Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987).

See generally Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947).

See generally Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, opened for signature March 18, 1970, 23 U.S.T. 2555, T.I.A.S. No. 7444, entered into force for the United States October 7, 1972, http://www.hcch.net/upload/conventions/txt20en.pdf.

A full discussion of these procedural issues is beyond the scope of this report.

15 U.S.C. §46(a)-(b), (f), (h).

Id. §46(j); see also id. §57b-2(b)(6), (f)(2); 16 C.F.R. §4.11(j). For a provision of the FTC Act pertaining to staff exchanges with foreign government agencies, see 15 U.S.C. §57c-1.

Id. §46(j).

Id. §56(c). The FTC has also worked with foreign counsel to compel production of evidence for use in domestic proceedings.FTC, Report to Congress, The U.S. SAFE WEB Act: The First Three Years iii (2009), http://www.ftc.gov/sites/default/files/documents/reports/u.s.safe-web-act-first-three-years-federal-trade-commission-report-congress/p035303safewebact2009.pdf.

15 U.S.C. §44.

See, e.g., FTC v. Skybiz.com, Inc., 57 F. App'x 374, 377 (10th Cir. 2003); Nieman v. Dryclean USA Franchise Co., 178 F.3d 1126, 1129–31 (11th Cir. 1999); Branch v. FTC, 141 F.2d 31, 35-36 (7th Cir. 1944); FTC v. Commonwealth Mktg. Group, Inc., 72 F. Supp. 2d 530, 545 (W.D. Pa. 1999); Michael A. Rabkin, When Consumer Fraud Crosses the International Line: The Basis for Extraterritorial Jurisdiction Under the FTC Act, 101 Nw. U. L. Rev. 293, 296, 303, & n.74 (2007). Extraterritorial application of U.S. law is not prohibited by the U.S. Constitution.

15 U.S.C. §45(a)(4); see also Restatement (Third) of the Foreign Relations Law of the United States §402 (1987) ("Subject to [certain exceptions,] a [country] has jurisdiction to prescribe law with respect to ... conduct outside its territory that has or is intended to have substantial effect within its territory."). Section 403 of the Restatement states that the exercise of jurisdiction to prescribe should be reasonable.

Equal Employment Opportunity Comm'n v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991) ("It is a long-standing principle of American law 'that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.'") (quoting Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949)). It could be argued that a U.S. court should decline to apply the FTC Act extraterritorially to conduct occurring abroad that has substantial effects in the United States if such application would violate principles of international comity by prohibiting an entity from engaging in conduct required by the laws of the foreign country in which it is domiciled. Morrison v. Nat'l Australia Bank Ltd., 561 U.S. 247, 269 (2010); Hartford Fire Ins. Co. v. California, 509 U.S. 764, 799 (1993); Michael A. Rabkin, When Consumer Fraud Crosses the International Line: The Basis for Extraterritorial Jurisdiction Under the FTC Act, 101 Nw. U. L. Rev. 293, 324-26 (2007). However, one commentator has noted that such a prohibition would appear unlikely to result in the context of consumer protection laws because it seems unlikely that a foreign country's laws would require an entity to engage in conduct prohibited by the FTC Act. Id. at 326; Restatement (Third) of the Foreign Relations Law of the United States §441 (1987) ("In general, a state may not require a person (a) to do an act in another state that is prohibited by the law of that state or by the law of the state of which he is a national; or (b) to refrain from doing an act in another state that is required by the law of that state or by the law of the state of which he is a national.").

E.g., Complaint for Permanent Injunction and Other Equitable Relief, FTC v. Dr. Clark Research Ass'n, Civ. No. 1:03CV0054 (N.D. Ohio January 8, 2003); Complaint for Injunctive and Other Equitable Relief at 2-3, FTC v. TLD Network Ltd., No. 02C 1475 (N.D. Ill. February 28, 2002); Amended Complaint for Permanent Injunction and Other Equitable Relief at 3-4, FTC v. 1492828 Ontario, Inc., No. 02C 7456 (N.D. Ill. December 30, 2002); see also Restatement (Third) of the Foreign Relations Law of the United States §421 (1987) ("In general, a state's exercise of jurisdiction to adjudicate with respect to a person or thing is reasonable if, at the time jurisdiction is asserted ... the person, whether natural or juridical, has carried on outside the state an activity having a substantial, direct, and foreseeable effect within the state, but only in respect of such activity."). Regarding jurisdiction to enforce, the Restatement provides the following:

(1) A state may employ judicial or nonjudicial measures to induce or compel compliance or punish noncompliance with its laws or regulations, provided it has jurisdiction to prescribe in accordance with §§ 402 and 403.

(2) Enforcement measures must be reasonably related to the laws or regulations to which they are directed; punishment for noncompliance must be preceded by an appropriate determination of violation and must be proportional to the gravity of the violation.

(3) A state may employ enforcement measures against a person located outside its territory

(a) if the person is given notice of the claims or charges against him that is reasonable in the circumstances;

(b) if the person is given an opportunity to be heard, ordinarily in advance of enforcement, whether in person or by counsel or other representative; and

(c) when enforcement is through the courts, if the state has jurisdiction to adjudicate.

Id. §431.

See generally Fed. R. Civ. P. 4(f); Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, opened for signature November 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638, 658 U.N.T.S. 163, entered into force for the United States February 10, 1969, http://www.hcch.net/upload/conventions/txt14en.pdf. Under the FTC Act, civil investigative demands may be served upon entities outside of the United States' territorial jurisdiction in accordance with the Federal Rules of Civil Procedure. 15 U.S.C. §57b-1(c)(7)(B). The FTC Act states that the U.S. District Court for the District of Columbia shall have authority to assert extraterritorial jurisdiction over persons in order to enforce their compliance with civil investigative demands, so long as jurisdiction is exercised consistent with due process. Id. §57b-1(c)(7)(C).

See generally Fed. R. Civ. P. 4(k); Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987).

See generally Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947).

See generally Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, opened for signature March 18, 1970, 23 U.S.T. 2555, T.I.A.S. No. 7444, entered into force for the United States October 7, 1972, http://www.hcch.net/upload/conventions/txt20en.pdf.

See generally Restatement (Third) of the Foreign Relations Law of the United States §481 (1987) (concerning U.S. courts' recognition of foreign judgments and awards). A full discussion of these procedural issues is beyond the scope of this report.

15 U.S.C. §45.

16 C.F.R. Part 260.

16 C.F.R. §260.1(a); Application of Guides in Preventing Unlawful Practices, 16 C.F.R. Part 17 ("Failure to comply with the guides may result in corrective action by the commission under applicable statutory provisions.").

See "Other Laws Enforced by the FTC" below.

E.g., Dolphin Protection Consumer Information Act of 1990 (DPCIA), 16 U.S.C. §1385(d). However, the FTC imposes civil penalties for certain violations of the FTC's Appliance Labeling Rule under the Energy Policy and Conservation Act of 1975. 42 U.S.C. §6303. The FTC's Appliance Labeling Rule is located at 16 C.F.R. Part 305. See also Penalties for Violation of Appliance Labeling Rules, 16 C.F.R. §§1.92-.97.

15 U.S.C. §45.

16 C.F.R. Part 260.

16 C.F.R. §260.1(c)-(d) ("These guides apply to claims about the environmental attributes of a product, package, or service in connection with the marketing, offering for sale, or sale of such item or service to individuals. These guides also apply to business-to-business transactions. The guides apply to environmental claims in labeling, advertising, promotional materials, and all other forms of marketing in any medium, whether asserted directly or by implication, through words, symbols, logos, depictions, product brand names, or any other means."). The FTC first issued its Green Guides in 1992, and most recently revised them in 2012. FTC, Guides for the Use of Environmental Marketing Claims, 77 Fed. Reg. 62122, 62122 (October 11, 2012).

See also FTC, Statement of Policy Regarding Comparative Advertising (August 13, 1979), http://www.ftc.gov/public-statements/1979/08/statement-policy-regarding-comparative-advertising.

16 C.F.R. §§260.3-.4.

E.g., id. §260.3.

See id. §260.1(d).

FTC, Guides for the Use of Environmental Marketing Claims, 77 Fed. Reg. 62122, 62122 (October 11, 2012).

See 16 C.F.R. Part 260.

FTC, Guides for the Use of Environmental Marketing Claims, 77 Fed. Reg. 62122, 62124 (October 11, 2012).

16 C.F.R. §260.1(a).

Id. §260.1(a); Application of Guides in Preventing Unlawful Practices, 16 C.F.R. Part 17 ("Failure to comply with the guides may result in corrective action by the commission under applicable statutory provisions.").

16 C.F.R. §260.1(b).

See 15 U.S.C. §57a(a)(1)(B).

16 C.F.R. Part 460.

16 C.F.R. Part 259.

42 U.S.C. §6294. The FTC's Appliance Labeling Rule is located at 16 C.F.R. Part 305. See also Penalties for Violation of Appliance Labeling Rules, 16 C.F.R. §§1.92-.97. EPCA establishes (or requires the DOE to establish) energy and water conservation standards for covered consumer products listed at 42 U.S.C. §6292. See 42 U.S.C. §6295.

Id. §6294(c); see also 16 C.F.R. §305.4.

42 U.S.C. §6363; 16 C.F.R. Part 311.

16 U.S.C. §1385. Department of Commerce regulations implementing the DPCIA are located at 50 C.F.R. Part 216, Subpart H. In 2008, various WTO Members requested consultations with the United States with respect to the DPCIA, its implementing regulations, and a related federal court of appeals decision. For the current status of the WTO dispute settlement case challenging aspects of these measures as inconsistent with the WTO agreements, see http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds381_e.htm.

42 U.S.C. §13232. The FTC's labeling requirements under this provision are located at 16 C.F.R. Part 309.

15 U.S.C. §§2821-2824. The FTC's Posting Rule is located at 16 C.F.R. Part 306. Failure to comply with the Posting Rule is deemed a violation of Section 5 of the FTC Act. 16 C.F.R. §306.1. A few courts have addressed the question of whether the PMPA and the FTC's Posting Rule preempt state law claims that would effectively impose disclosure and labeling requirements for retailers and other parties with regard to automotive fuel ratings. E.g., Alvarez v. Chevron Corp., 656 F.3d 925, 928, 934-35 (9th Cir. 2011) (finding express preemption of a state law false advertising claim that would effectively require retailers to make disclosures in addition to those required under federal law); VP Racing Fuels, Inc. v. General Petroleum Corp., 673 F. Supp. 2d 1073, 1076-83 (E.D. Cal. 2009) (finding no express or implied preemption when the state law false advertising claim would effectively require distributors to make accurate and truthful disclosures); see also 15 U.S.C. §2824.

42 U.S.C. §17021. Regulations implementing this provision are located in the FTC's Posting Rule at 16 C.F.R. Part 306. Violation of the rule is considered to be a violation of Section 5 of the FTC Act. 16 C.F.R. §306.1.

E.g., Am. Plastic Lumber Inc., FTC File No. 132 3200 (June 24, 2014) (complaint).

E.g., N.E.W. Plastics Corp., FTC File No. 132 3126 (April 3, 2014) (complaint).

E.g., Complaint for Permanent Injunction, Civil Penalties, and Other Relief at 5-7, FTC v. AJM Packaging Corp., No. 1:13-cv-1510 (D.D.C. September 30, 2013).

E.g., Essentia Natural Memory Foam Co., Inc., FTC File No. 122 3130 (November 8, 2013) (complaint).

E.g., Ecobaby Organics, Inc., FTC File No. 122 3129 (November 8, 2013); see also Guides Concerning Use of Endorsements and Testimonials in Advertising, 16 C.F.R. Part 255.

Pure Bamboo, LLC, FTC File No. 082 3193 (December 15, 2009) (complaint).

Gorell Enters., Inc., FTC File No. 112 3053 (May 16, 2012) (complaint).

E.g., Safe Brands Corp., 121 F.T.C. 379, 385 (March 26, 1996) (complaint).

Mattel, Inc., 119 F.T.C. 969, 970 (June 23, 1995) (complaint).

PerfectData Corp., 116 F.T.C. 769, 770 (August 2, 1993) (complaint).

Amended Complaint for Permanent Injunctive and Other Relief at 27-28, FTC v. Lights of America, Inc., No. SACV10-01333 (C.D. Cal. February 4, 2011).

Complaint for Permanent Injunction and Other Equitable Relief at 8-9, FTC v. Green Foot Global, L.L.C., No. 2:13-cv-02064 (D. Nev. November 7, 2013); Blue Coral Inc., 124 F.T.C. 568, 571 (July 12, 1996) (complaint).

Orkin Exterminating Co., Inc., 117 F.T.C. 747, 748 (May 25, 1994) (complaint).

Mr. Coffee, Inc., 117 F.T.C. 156, 157-58 (March 25, 1994) (complaint).

15 U.S.C. §§70 et seq.

16 C.F.R. Part 303. These regulations were promulgated under the authority of the Textile Fiber Products Identification Act rather than the FTC Act. Id.

E.g., Complaint for Civil Penalties, Injunctive, and Other Relief at 7-10, United States v. Macy's, Inc., No. 1:13-cv-00004 (D.D.C. January 3, 2013).

16 C.F.R. Part 460.

E.g., Complaint for Civil Penalties, Injunction, and Other Relief at 8-10, United States v. Enviromate, LLC, No. CV-09-S-0386-NE (N.D. Ala. February 26, 2009); United States v. Sumpolec, 811 F. Supp. 2d 1349 (M.D. Fla. 2011) (order granting plaintiff's motion for summary judgment).

E.g., N.E.W. Plastics Corp., FTC File No. 132 3126 (April 3, 2014) (decision and order); Stipulated Order for Permanent Injunction and Monetary Judgment at 3-14, FTC v. Green Foot Global, L.L.C., No. 2:13-cv-02064 (D. Nev. November 18, 2013). Occasionally, a case has gone to trial. E.g., Final Judgment and Order for Injunctive and Other Relief, FTC v. Lights of America, Inc., No. SACV10-01333 (C.D. Cal. January 15, 2014). In the past, some FTC consent orders have stated that they do not prevent the respondent from disseminating representations contained on labels or in other materials approved under other federal law. E.g., Orkin Exterminating Co., 117 F.T.C. 747, 755 (May 25, 1994) (decision and order) ("Provided however, that nothing in this order shall prohibit respondent from disseminating ... any pesticide label approved by the United States Environmental Protection Agency ...").

E.g., Am. Plastic Lumber Inc., FTC File No. 132 3200 (July 24, 2014) (decision and order); Stipulated Order for Permanent Injunction and Monetary Judgment at 3-14, FTC v. Green Foot Global, L.L.C., No. 2:13-cv-02064 (D. Nev. November 18, 2013). If, in general, "experts in the relevant scientific fields would conclude it is necessary, such evidence must be competent and reliable scientific evidence." E.g., Am. Plastic Lumber Inc., FTC File No. 132 3200 (July 24, 2014) (decision and order). Consent orders typically define "competent and reliable scientific evidence" as "tests, analyses, research, or studies that have been conducted and evaluated in an objective manner by qualified persons, that are generally accepted in the profession to yield accurate and reliable results, and that are sufficient in quality and quantity based on standards generally accepted in the relevant scientific fields, when considered in light of the entire body of relevant and reliable scientific evidence, to substantiate that a representation is true." Id.; see also FTC Policy Statement Regarding Advertising Substantiation, http://www.ftc.gov/public-statements/1983/03/ftc-policy-statement-regarding-advertising-substantiation.

E.g., Am. Plastic Lumber Inc., FTC File No. 132 3200 (July 24, 2014) (decision and order); Stipulated Order for Permanent Injunction and Monetary Judgment at 3-14, FTC v. Green Foot Global, L.L.C., No. 2:13-cv-02064 (D. Nev. November 18, 2013).

E.g., Am. Plastic Lumber Inc., FTC File No. 132 3200 (July 24, 2014) (decision and order).

Supra notes 4-5, 6.

See International Organization for Standardization, Environmental Labels and Declarations: How ISO Standards Help 1 (2012), http://www.iso.org/iso/environmental-labelling.pdf.

See id. at 16.

See "Enforcement Actions" above.

See "Section 5 of the FTC Act and the Green Guides" above.

See "Other Laws Enforced by the FTC" and "Introduction" above.

See, e.g.,42 U.S.C. §6294a.

E.g., id. §6294 (EnergyGuide label).

Cf. 15 U.S.C. §2056(b)(1) (stating that the Consumer Product Safety Commission should rely on voluntary standards issued by other bodies "whenever compliance with such voluntary standards would eliminate or adequately reduce the risk of injury addressed and it is likely that there will be substantial compliance with such voluntary standards."). For more on the ISO 14020 series of standards, see International Organization for Standardization, Environmental Labels and Declarations: How ISO Standards Help (2012), http://www.iso.org/iso/environmental-labelling.pdf.

For simplicity, this report assumes that Congress would directly enact (or refrain from enacting) a law governing environmental marketing claims, and does not consider the possibility that Congress would delegate this authority to a federal administrative agency.

See American National Standards Institute, Workshop Report, Toward Product Standards for Sustainability (2009), http://publicaa.ansi.org/sites/apdl/Documents/Meetings%20and%20Events/ANSI%20Workshop%20Toward%20Product%20Standards%20for%20Sustainability/Workshop%20report%20FINAL.pdf. The federal government may participate in the development of private voluntary standards. See OMB Circular A-119, http://www.whitehouse.gov/omb/circulars_a119_a119fr.

Cf. 15 U.S.C. §2056b (codifying most of the voluntary toy safety standard by ASTM International (formerly known as the American Society for Testing and Materials (ASTM)) into U.S. law).

Cf. 42 U.S.C. §6294; 21 U.S.C. §343(q) (requiring nutrition labeling for food).

See 42 U.S.C. §6294a.

United States v. Edge Broadcasting Co., 509 U.S. 418, 418 (1993).

Board of Trustees of the State University of New York v. Fox, 492 U.S. 469, 482 (1989).

Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 67 (1983).

Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y.,447 U.S. 557, 566 (1980).

Id. at 564-65.

Id. at 563-64.

Id. at 564.

Id.

Id.

Id. at 569-70.

Bd. of Trustees of the State University of N.Y. v. Fox, 492 U.S. 469 (1989).

Id. at 480.

Id.

Fox, 492 U.S. at 477.

Assoc. of Nat'l Advertisers v. Lungren, 44 F.3d 726 (9th Cir. 1994).

Cal. Bus. Code §17508.5, repealed by Stats. 1995 ch. 642 §2 (SB 426).

Lungren, 44 F.3d at 727 (internal citations omitted).

Id. at 728. The plaintiffs also challenged the statute on the grounds that it was unconstitutionally vague. Id.

Id. at 728 (citing Bolger, 463 U.S. at 67).

Id. at 729. The court also determined that the statute "does not embrace non-commercial messages inextricably linked with commercial speech." Id. at 730.

Id. at 731-32.

Lungren, 44 F.3d at 732.

Id. at 733.

Id.

Id.

Id. at 735.

Lungren, 44 F.3d at 735-36.

Id. This holding has been criticized by the D.C. Circuit. Pearson v. Shalala, 164 F.3d 650 (D.C. Cir. 1999). The court disagreed with the Ninth Circuit's conclusion that Fox "mandates a more deferential review of government regulations on potentially misleading commercial speech." Id. at 657. It continued to note that, in its opinion, "when government chooses a policy of suppression over disclosure—at least where there is no showing that disclosure would not suffice to cure misleadingness—government disregards a 'far less restrictive' means." Id. at 658. Additionally, the Pearson court noted that a subsequent Supreme Court case, 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, undermined the Lungren court's statement that "a court should not second guess a legislative decision to restrict speech rather than to require speech." Id. (noting that the "Supreme Court expressly disapproved of that aspect of Posadas [de Puerto Rico Assocs. v. Tourism Co. of Puerto Rico, 478 U.S. 328] in 44 Liquormart.")

Nat'l Elec. Mfrs. Ass'n v. Sorrell, 272 F.3d 104, 113-114 (2d Cir. 2001).

Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985) (stating that "[an advertiser's] constitutionally protected interest in not providing any particular factual information in his advertising is minimal ... We do not suggest that disclosure requirements do not implicate the advertiser's First Amendment rights at all. We recognize that unjustified or unduly burdensome disclosure requirements might offend the First Amendment by chilling protected commercial speech. But we hold that an advertiser's rights are adequately protected as long as disclosure requirements are reasonably related to the State's interest in preventing deception of consumers.").

Id.

Id.

See, e.g., Am. Meat Inst. v. Dep't of Ag., 760 F.3d 18, 22 (D.C. Cir. 2014) ("The language with which Zauderer justified its approach, however, sweeps far more broadly than the interest in remedying deception. After recounting the elements of Central Hudson, Zauderer rejected that test as unnecessary in light of the 'material differences between disclosure requirements and outright prohibitions on speech.' Later in the opinion, the Court observed that 'the First Amendment interests implicated by disclosure requirements are substantially weaker than those at stake when speech is actually suppressed.' All told, Zauderer's characterization of the speaker's interest in opposing forced disclosure of such information as 'minimal' seems inherently applicable beyond the problem of deception, as other circuits have found.") (internal citations omitted); N.Y. State Rest. Ass'n v. N.Y. City Bd. of Health, 556 F.3d 114, 133 (2d Cir. 2009) (subjecting a disclosure requirement intended to "(1) reduce consumer confusion and deception; and (2) to promote informed consumer decision-making so as to reduce obesity and the diseases associated with it" to the Zauderer standard); Pharm. Care Mgmt. Ass'n v. Rowe, 429 F.3d 294, 316 (1st Cir. 2005) (subjecting a disclosure requirement related to "Maine's interest in preventing deception of consumers and increasing public access to prescription drugs" to the Zauderer standard); Sorrell, 272 F.3d at 115 (subjecting a disclosure requirement intended "to better inform consumers about the products they purchase" and "protect[] human health and the environment from mercury poisoning" to the Zauderer standard).

Zauderer, 471 U.S. at 651.

See, e.g., Zauderer, 471 U.S. at 650-51; R.J. Reynolds Tobacco Co. v. FDA, 696 F.3d 1205, 1216-17 (D.C. Cir. 2012) (subjecting a federal law that required certain statements and nonpurely factual and uncontroversial images to appear on cigarette packages to Central Hudson intermediate scrutiny); Entm't Software Ass'n v. Blagojevich, 469 F.3d 641 (7th Cir. 2006) (subjecting a law requiring an "18" sticker to be placed on certain video games, which "communicate[d] a subjective and highly controversial message—that the game's content is sexually explicit," to strict scrutiny).

This section does not analyze potential implications that may arise under other WTO agreements or other international agreements to which the United States is a party.

GATT Article I:1, which sets forth a most-favored-nation treatment obligation, requires that "any advantage, favour, privilege or immunity granted by any [WTO Member] to any product originating in or destined for any other country shall be accorded immediately and unconditionally to the like product originating in or destined for the territories of all other [WTO Members]." Article I:1 applies to customs duties and import charges, as well as to all rules and formalities in connection with importation and exportation. GATT Article III:4, which sets forth a national treatment obligation for WTO Members' internal regulations, requires that a WTO Member provide no less favorable competitive conditions for imported products as compared to like domestic products. GATT Article XX contains possible exceptions to these obligations.

TBT Agreement, Preamble. The disciplines of the TBT Agreement do not apply to sanitary and phytosanitary measures or purchasing specifications prepared by governmental bodies addressed in the Agreement on Government Procurement.TBT Agreement, Art. 1.4-.5.

TBT Agreement, Art. 2 & Annex 1.

See TBT Agreement, Arts. 2-10, 14 & Annex 1.

TBT Agreement, Art. 14; Understanding on Rules and Procedures Governing the Settlement of Disputes, Art. 3.

See "Other Laws Enforced by the FTC" above.

16 U.S.C. §1385. Department of Commerce regulations implementing the DPCIA are located at 50 C.F.R. Part 216, Subpart H.

Appellate Body Report, United States—Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/AB/R, ¶ 407 (May 16, 2012).

Department of Commerce, Final Rule, Enhanced Document Requirements To Support Use of the Dolphin Safe Label on Tuna Products, 78 Fed. Reg. 40997 (July 9, 2013).

A summary of the ongoing dispute settlement case and its current status is located at http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds381_e.htm.

The agreement defines "technical regulation" as a document "which lays down product characteristics or their related processes and production methods, including the applicable administrative provisions, with which compliance is mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a product, process or production method." TBT Agreement, Annex 1.1.

The agreement defines "standard" as a document "approved by a recognized body, that provides, for common and repeated use, rules, guidelines or characteristics for products or related processes and production methods, with which compliance is not mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a product, process or production method." TBT Agreement, Annex 1.2.

This section does not analyze whether marketing claims not appearing on a product's label are covered by the TBT Agreement.

See "U.S. Obligations with Respect to Technical Regulations" below. If the panel were to find that the measure was a "standard," the United States would have to comply with obligations provided in the Code of Good Practice for the Preparation, Adoption and Application of Standards. TBT Agreement, Art. 4.1 & Annex 3.

TBT Agreement, Art. 4.1. This obligation also applies with respect to "regional standardizing bodies of which [WTO Members] or one or more bodies within their territories are members." Id.

TBT Agreement, Annex 1.1.

Appellate Body Report, European Communities—Trade Description of Sardines, WT/DS231/AB/R, ¶ 176 (Sept. 26, 2002); Appellate Body Report, European Communities—Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R, paras. 67-70 (March 12, 2001).

See Committee on Technical Barriers to Trade, Notification by the United States, Guides for the Use of Environmental Marketing Claims, G/TBT/N/USA/595 (November 18, 2010) (stating that the FTC's nonbinding guidelines apply to "consumer products").

Appellate Body Report, United States—Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/AB/R, paras. 193-195 (May 16, 2012); Appellate Body Report, European Communities—Trade Description of Sardines, WT/DS231/AB/R, ¶ 190 (Sept. 26, 2002); Panel Report, European Communities—Trade Description of Sardines, WT/DS231/R, ¶ 7.27 (May 29, 2002).

Appellate Body Report, United States—Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/AB/R, paras. 193-195 (May 16, 2012).

Id. The Appellate Body found that the U.S. dolphin tuna labeling measure required mandatory compliance, even though use of the label was voluntary because "[i]n effect, the measure at issue establishes a single definition of 'dolphin-safe' and treats any statement on a tuna product regarding 'dolphin-safety' that does not meet the conditions of the measure as a deceptive practice or act." Id. at ¶ 195. A WTO panel evaluating whether a measure is mandatory might also seek to determine whether the affected industry has complied with the labeling requirement as if it were binding. Panel Report, United States—Certain Country of Origin Labeling (COOL) Requirements, WT/DS/384/R, paras. 7.192-.194 (November 18, 2011).

See International Organization for Standardization, Environmental Labels and Declarations: How ISO Standards Help 16 (2012), http://www.iso.org/iso/environmental-labelling.pdf.

WTO, Environment: Issues, Labelling, http://www.wto.org/english/tratop_e/envir_e/labelling_e.htm.

See TBT Agreement, Annex 1.1.

Appellate Body Report, European Communities—Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/AB/R, ¶ 5.69 (May 22, 1014) ("In these circumstances, we do not consider it appropriate to complete the legal analysis by ruling on whether the EU Seal Regime lays down 'related processes and production methods' within the meaning of Annex 1.1 to the TBT Agreement.").

See, e.g., TBT Agreement, Annex 1.1 (defining a "technical regulation" as a document "which lays down product characteristics or their related processes and production methods, including the applicable administrative provisions, with which compliance is mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a product, process or production method.") (emphasis added); Erik P. Bartenhagen, Note, The Intersection of Trade and the Environment: An Examination of the Impact of the TBT Agreement on Ecolabeling Programs,17 Va. Envtl. L.J. 51, 74 (1997).

The GATT could potentially apply to a measure covered by the TBT Agreement if relevant provisions in the two agreements were not in conflict. See Marrakesh Agreement Establishing the World Trade Organization, General Interpretive Note to Annex 1A, April 15, 1994. This report does not analyze whether an environmental labeling measure might give rise to a "non-violation" claim under GATT Article XXIII:1(b). This GATT article states that a WTO Member may challenge a measure when "the application by another [WTO Member] of [the] measure, whether or not it conflicts with the provisions of this Agreement[,]" nullifies or impairs a "benefit accruing to it directly or indirectly under [the GATT]" or impedes "the attainment of any objective of the [GATT]." GATT Art. XXIII. The Appellate Body has stated that "the remedy in Article XXIII:1(b) 'should be approached with caution and should remain an exceptional remedy.'" Appellate Body Report, European Communities—Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R, ¶ 186 (March 12, 2001) (quoting Panel Report, Japan—Measures Affecting Consumer Photographic Film and Paper, WT/DS44/R, ¶ 10.37 (April 22, 1998)).

See generally GATT Panel Report, United States—Restrictions on Imports of Tuna, GATT Doc. DS21/R, GATT BISD 39S/155, ¶ 5.15 (September 3, 1991) (unadopted) ("Article III:4 [of the GATT] therefore obliges the United States to accord treatment to Mexican tuna no less favourable than that accorded to United States tuna, whether or not the incidental taking of dolphins by Mexican vessels corresponds to that of United States vessels."); Appellate Body Report, United States—Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/AB/R, paras. 230, 298-99 (May 16, 2012) (implicitly raising the possibility that the TBT Agreement may apply to labeling of NPR PPMs); Marie Wilke & Hannes Schloemann, International Centre for Trade and Sustainable Development, Not-so-voluntary Labelling in the WTO Tuna-dolphin Dispute (2011), http://www.ictsd.org/bridges-news/biores/news/not-so-voluntary-labelling-in-the-wto-tuna-dolphin-dispute. Health and environmental concerns associated with each product could potentially be relevant to a panel's analysis of whether they are "like products" to which the GATT's nondiscrimination obligations apply. See Appellate Body Report, European Communities—Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R, paras. 116, 122, 126, 128, 131-32 (March 12, 2001); Center for International Environmental Law, Eco-labeling Standards, Green Procurement and the WTO: Significance for World Bank Borrowers 41-42 (2005), http://www.ciel.org/Publications/Ecolabeling_WTO_Mar05.pdf.

E.g., GATT Art. XX(b) (measures "necessary to protect human, animal or plant life or health"), XX(g) (measures "relating to the conservation of exhaustible natural resources"). If a measure is provisionally justified under Article XX(b) or (g), it must also satisfy the Article XX chapeau.Appellate Body Report, U.S.—Standards for Reformulated and Conventional Gasoline, 22-23, WT/DS2/AB/R (April 29, 1996). The chapeau states that a measure covered by Article XX must be neither "a disguised restriction on international trade" nor "applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail."GATT Art. XX.

See generally GATT Panel Report, United States—Restrictions on Imports of Tuna, GATT Doc. DS21/R, GATT BISD 39S/155, ¶ 6.2 (September 3, 1991) (unadopted) (stating that "a contracting party may not restrict imports of a product merely because it originates in a country with environmental policies different from its own"); GATT Panel Report, United States—Restrictions on Imports of Tuna, DS/29/R, ¶ 5.20 (June 16, 1994) (unadopted) ("[T]he Panel could see no valid reason supporting the conclusion that the provisions of Article XX(g) apply only to policies related to the conservation of exhaustible natural resources located within the territory of the contracting party invoking the provision."); Appellate Body Report, United States—Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, ¶ 121 (October 12, 1998) ("It appears to us, however, that conditioning access to a Member's domestic market on whether exporting Members comply with, or adopt, a policy or policies unilaterally prescribed by the importing Member may, to some degree, be a common aspect of measures falling within the scope of one or another of the exceptions (a) to (j) of Article XX.").

TBT Agreement, Art. 2.1. These national treatment and most-favored-nation obligations are basic WTO principles articulated in the GATT. See GATT Arts. I, III.

Among other things, a panel may consider "(i) the physical properties of the products; (ii) the extent to which the products are capable of serving the same or similar end-uses; (iii) the extent to which consumers perceive and treat the products as alternative means of performing particular functions in order to satisfy a particular want or demand; and (iv) the international classification of the products for tariff purposes." Panel Report, United States—Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/R, paras. 7.235-.240 (September 15, 2011). When a measure such as a labeling requirement would itself affect the competitive conditions between products, the likeness analysis should "determine the nature and the extent of the competitive relationship for the purpose of determining likeness in isolation from the measure at issue to the extent that the latter informs the physical characteristics of the products and/or consumers' preferences." Appellate Body Report, United States—Measures Affecting the Production and Sale of Clove Cigarettes, WT/DS406/AB/R, ¶ 111 (April 4, 2012).

Id. at ¶ 119; Appellate Body Report, European Communities—Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R, paras. 116, 122, 126, 128, 131-32 (March 12, 2001) (addressing this issue in a case involving a comparison between chrysotile asbestos fibers and substitute fibers).

See Center for International Environmental Law, supra note 190, at 41-42.

TBT Agreement, Art. 2.1.

Appellate Body Report, United States—Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/AB/R, ¶ 231 (May 16, 2012).

Id. at paras. 233, 299.

Id. at paras. 236-40.

Appellate Body Report, United States—Certain Country of Origin Labeling (COOL) Requirements, WT/DS/384/AB/R, ¶ 270 (June 29, 2012).

Panel Report, United States—Certain Country of Origin Labeling (COOL) Requirements, WT/DS/384/R, paras. 7.302, .372, .374, .376, .378 (November 18, 2011).

Appellate Body Report, United States—Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/AB/R, paras. 297-99 (May 16, 2012).

Id. at ¶ 298.

Appellate Body Report, United States—Certain Country of Origin Labeling (COOL) Requirements, WT/DS/384/AB/R, ¶ 347 (June 29, 2012).

TBT Agreement, Art. 2.4.

For more on the ISO 14020 series of standards, see International Organization for Standardization, Environmental Labels and Declarations: How ISO Standards Help (2012), http://www.iso.org/iso/environmental-labelling.pdf.

Annex 1.2 defines "standard" as a "document approved by a recognized body, that provides, for common and repeated use, rules, guidelines or characteristics for products or related processes and production methods, with which compliance is not mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a product, process or production method." TBT Agreement, Annex 1.2. This report does not address a potential interaction between aspects of the ISO standard addressing NPR PPMs and WTO rules.

Annex 1.4 defines international body as a "body ... whose membership is open to the relevant bodies of at least all Members." TBT Agreement, Annex 1.4; Panel Report, EC—Trade Description of Sardines, WT/DS231/R, ¶ 7.63 (May 29, 2002).

Panel Report, EC—Trade Description of Sardines, WT/DS231/R, ¶ 7.69 (May 29, 2002).

Panel Report, United States—Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/R, ¶ 7.701 (September 15, 2011).

Panel Report, EC—Trade Description of Sardines, WT/DS231/R, ¶ 7.110 (May 29, 2002).

Appellate Body Report, EC—Trade Description of Sardines, WT/DS231/AB/R, ¶ 248 (September 26, 2002).

TBT Agreement, Art. 2.4.

Panel Report, United States—Certain Country of Origin Labeling (COOL) Requirements, WT/DS/384/R, paras. 7.734-.735 (November 18, 2011); Panel Report, EC—Trade Description of Sardines, WT/DS231/R, ¶ 7.123 (May 29, 2002).

TBT Agreement, Art. 2.2. A WTO panel has noted that this test involves a two-step inquiry: (1) whether a technical regulation pursues a legitimate objective; and (2) whether the technical regulation is more trade-restrictive than necessary to fulfill that legitimate objective, taking into account the risks nonfulfillment would create. Panel Report, US—Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/R, paras. 7.382-.387 (September 15, 2011).

Appellate Body Report, United States—Certain Country of Origin Labeling (COOL) Requirements, WT/DS/384/AB/R, paras. 451, 453 (June 29, 2012).

TBT Agreement, Art. 2.2.

Appellate Body Report, United States—Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/AB/R, ¶ 317 (May 16, 2012). In this case, the Appellate Body wrote that

In sum, we consider that an assessment of whether a technical regulation is "more trade-restrictive than necessary" within the meaning of Article 2.2 of the TBT Agreement involves an evaluation of a number of factors. A panel should begin by considering factors that include: (i) the degree of contribution made by the measure to the legitimate objective at issue; (ii) the trade-restrictiveness of the measure; and (iii) the nature of the risks at issue and the gravity of consequences that would arise from non-fulfilment of the objective(s) pursued by the Member through the measure. In most cases, a comparison of the challenged measure and possible alternative measures should be undertaken. In particular, it may be relevant for the purpose of this comparison to consider whether the proposed alternative is less trade restrictive, whether it would make an equivalent contribution to the relevant legitimate objective, taking account of the risks non-fulfilment would create, and whether it is reasonably available.

Id. at ¶ 322 (citation omitted).

Appellate Body Report, United States—Certain Country of Origin Labeling (COOL) Requirements, WT/DS/384/AB/R, ¶ 468 (June 29, 2012).

TBT Agreement, Art. 2.9. The agreement contains an exception to some of these requirements for "urgent problems of safety, health, environmental protection or national security." TBT Agreement, Art. 2.10.

TBT Agreement, Art. 2.11.

TBT Agreement, Art. 2.3; Panel Report, European Communities—Trade Description of Sardines, WT/DS231/R, paras. 7.80-.81 (May 29, 2002).

TBT Agreement, Art. 2.8.

TBT Agreement, Arts, 5-9. The agreement defines "conformity assessment procedures" as procedures "used, directly or indirectly, to determine that relevant requirements in technical regulations or standards are fulfilled." TBT Agreement, Annex 1.3.

TBT Agreement, Arts. 11-12.

Several bills in the 102nd Congress would have established a regulatory framework for environmental marketing claims. Some bills would have provided a minimum floor of requirements for certain claims, and would not have preempted stricter state standards. E.g., Environmental Marketing Claims Act of 1991 §13, H.R. 1408; Resource Conservation and Recovery Act Amendments of 1991 §307, S. 976 (as reported). Other bills contained stronger preemption language. E.g., National Waste Reduction, Recycling, and Management Act §403, H.R. 3865 (as reported).

E.g., Cal. Bus. & Prof. Code §17580(a). Even if a state does not have a law specific to environmental marketing claims, all 50 states and the District of Columbia have some form of consumer protection law prohibiting fraudulent or deceptive acts. Alan S. Brown & Larry E. Hepler, Comparison of Consumer Fraud Statutes Across the Fifty States, 55 Fed'n Def. & Corp. Couns. Q. 263, 263-65 (2005), available at http://www.thefederation.org/documents/Vol55No3.pdf. These "little FTC Acts" may prohibit unfair or deceptive environmental marketing claims, and many of the acts do not require a showing of all of the elements of a common law cause of action for fraud or breach of contract. In addition, unlike the FTC Act, many of these laws contain a private right of action for consumers. Id. Other state statutory and common law remedies could potentially be available to a consumer injured by an unfair or deceptive claim.

Cal. Bus. & Prof. Code §17580(a).

Id. §17580(b).

Id. §§17580(a)(5), 17580.5. Maine has a law that states, "A person who labels, advertises or promotes a product in violation of [the Green Guides] commits a violation of the Maine Unfair Trade Practices Act." Me. Rev. Stat. tit. 38, §2142; see also Mich. Comp. Laws §445.903(dd)(i); Minn. Stat. §325E.41; R.I. Gen. Laws §6-13.3-1.

Ind. Code Ann. §§24-5-17-2(b) et seq.

E.g., David F. Welsh, Environmental Marketing and Federal Preemption of State Law: Eliminating the "Gray" Behind the "Green," 81 Cal. L. Rev. 991, 991, 996-97, 1003-04 (1993).

Id. at 991.

E.g., Environmental Marketing Claims Act of 1991 §13, H.R. 1408.

See, e.g., 42 U.S.C. §6297(d).

Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 460 (1978); Greenwood Trust Co. v. Massachusetts, 971 F.2d 818, 828 (1st Cir. 1992); Welsh, supra note 233, at 998.

Welsh, supra note 227, at 1019; Glenn Israel, Comment, Taming the Green Marketing Monster: National Standards for Environmental Marketing Claims, 20 B.C. Envtl. Aff. L. Rev. 303, 326 (1993).

Thomas C. Downs, Comment, "Environmentally Friendly" Product Advertising: Its Future Requires a New Regulatory Authority, 42 Am. U.L. Rev. 155, 194 (1992).

See Medtronic, Inc. v. Lohr, 518 U.S. 470, 495 (1996).

Supra notes 4-5, 6.

See "Enforcement Actions" above.

See "Section 5 of the FTC Act and the Green Guides" above.

This paragraph summarizes in part the section above titled "World Trade Organization Agreement on Technical Barriers to Trade."

This paragraph summarizes in part the section above titled "Preemption of State Law."

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