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Green Guides Comment Deadline Extended

Client Alert | 2 min read | 02.03.23

#ICYMI—The Federal Trade Commission (“FTC”) extended the public comment period on its solicitation for public comments regarding potential updates and changes to the Green Guides (Guides for the Use of Environmental Marketing Claims) by 60 days.  On December 14, the FTC held an open meeting and voted to notice the public comment period. On December 20, the FTC noticed the public comment period on the Federal Register, which would have originally expired on February 21, 2023. All public comments must now be filed by April 24, 2023.

As a reminder, the Green Guides help advertisers avoid making environmental claims that may mislead consumers. In December, Crowell addressed the FTC’s announcement seeking public comments on the FTC potentially updating the Green Guides. The FTC provided a nineteen-question framework (with numerous subparts) for public comment creating a broad spectrum of topics for potential input. The framework does highlight specific terms such as compostable, recyclable, energy efficient, organic and sustainable for comment. These public comments will provide the FTC with guidance given the increased scrutiny on green advertising claims and corporate ESG efforts.

Given the lengthy question framework and now the 60-day extension, the FTC likely anticipates collecting input and perspectives on all facets of environmental advertising, including thorough comments from stakeholders and possibly consumer data collection. The FTC stated that the extension is “at the request of several interested parties.” At this time, 79 public comments have been submitted. We expect this initial solicitation for public comment to lead to proposed edits to the Green Guides, and potentially a rulemaking. Both would lead to further rounds of public comment. All this to say, we expect the update to the Green Guides will be an ongoing endeavor throughout 2023 by the FTC.

Crowell & Moring can counsel clients on specific advertising practices currently addressed in the Green Guides or assist clients in drafting comments on proposed edits to the Green Guides.

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Client Alert | 4 min read | 04.24.24

Muldrow Case Recalibrates Title VII “Significant Harm” Standard

On April 17, 2023, the Supreme Court handed down a unanimous decision in Muldrow v. City of St. Louis, Missouri, No. 22-193, holding that transferees alleging discrimination under Title VII of the Civil Rights Act of 1964 need only show that a transfer caused harm with respect to an identifiable term or condition of employment.  The Court’s decision upends decades of lower court precedent applying a “significant harm” standard to Title VII discrimination cases.  As a result, plaintiffs claiming discrimination under Title VII will likely more easily advance beyond motions to dismiss or motions for summary judgment. In the wake of the Court’s decisions in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (6-2), No. 20-1199, and Students for Fair Admissions, Inc. v. Univ. of North Carolina (6-3), No. 21-707 (June 29, 2023), Muldrow will also likely continue to reshape how employers conceive of, implement, and communicate workplace Diversity, Equity and Inclusion (“DEI”) efforts.  The decision may be used by future plaintiffs in “reverse” discrimination actions to challenge DEI or affinity programs that provide non-economic benefits to some – but not all – employees.  For example, DEI programs focused on mentoring or access to leadership open only to members of a certain protected class could be challenged under Muldrow by an employee positing that exclusion from such programs clears this new, lower standard of harm. ...

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