All business owners sign contracts, and some even read them before filing them away. If you do nothing more than this, you are missing an opportunity to protect your business and advance your green goals.

If green issues are important to your products, you should be sure you address them in your contracts. For example, if you manufacture a product that you label organic, all of the ingredients should be organic. You should require your suppliers to promise in their contracts that the ingredients you are buying from them are organic and that they’ll pay you for any damages you may suffer (through bad publicity or lawsuits from consumers) if they’re not. Other examples of promises that should be memorialized in contracts include promises by suppliers not to use specific ingredients in their products, performance promises for energy efficient products, and promises relating to recycled content.

Your expectations regarding sustainability issues can also be addressed in your contracts. Many larger companies are requiring their suppliers to make promises about their own recycling and energy reduction efforts. If you are contracting with someone, you can make them promise to meet certain green goals, such as recycling a certain percentage of the paper in their business, using energy efficient light bulbs, or reducing travel energy consumption.

These examples are just a taste of the ways that contracts can be used to ensure that your products or services are as green as you think they are.

When your clients seem to know more than you do about services for their special-needs children, you listen hard to what they have to say. You hear stories of 3-year waiting lists, unwritten rules that seem to change monthly, and the arbitrary loss of essential benefits for reasons clients do not understand. You hear questions about why one family gets all-day help, while your client’s child gets none. When you ask your client the name of the program that has denied assistance the answer is often, “I don’t know.”

Welcome to the world of waiver programs, where being eligible for a particular governmental benefit does not mean you will get it.

Government “Entitlement” Programs: Traditional government benefit programs are “entitlement” programs; that is, they provide benefits to every one who qualifies. Qualification rules vary, however. Some programs, like Medicaid, are means-tested (that is, requiring “impoverishment” for eligibility), while others, like Social Security disability benefits and Medicare, have no unearned income or asset limits. In either case lawyers can look up the applicable rules for entitlement programs in specific federal and state statutes, the Code of Federal Regulations, the POMS (the massive guidebook for Social Security claims representatives) or state specific manuals. While the rules are often complex, they are written down. Attorneys focusing on elder law, disability law and special needs matters pride themselves on mastering the intricate rules of the various programs in order to help clients obtain important benefits like Medicaid long term care assistance.

With only slight regional variations or state additions, the same Medicare, Supplemental Security Income (SSI) and Social Security Disability (SSD) rules apply nationwide. The rules for Medicaid vary considerably from state to state, however. This is because Medicaid is a state/federal program, with some federal requirements and many state variations. Lawyers who regularly study the Medicaid agency manuals of their particular states, as well as the federal regulations, should be able to advise their clients appropriately.

Housing Programs: Traditionally, housing assistance programs have been treated differently from other assistance programs. Only housing subsidies provided through the tax code, like mortgage interest deductions, have been available to all who qualify. For those of modest means who cannot afford to buy a house and get a mortgage, public and subsidized housing programs, such as Section 8 housing, limit participation by setting funding caps on construction and rental assistance programs. As a result, the waiting lists for decent affordable housing units are long. Obtaining housing assistance by qualifying for priority placement on waiting lists and holding on to precious units once obtained are key elements in the survival strategies of many lower income families. Losing a public or subsidized housing unit means going back to the end of a long line.

Waiver Programs: Waiver programs are more like housing programs than traditional entitlement programs because, by definition, waiver programs are those that have “waived” the traditional requirement that all who qualify must get timely benefits. And, as with housing programs, funding is limited and waiting lines can be long. Waiver programs may also waive other standard public benefit program requirements, such as statewide availability, so that a particular waiver program may only be available in certain counties in the state. But, while most of the “waived” requirements have the effect of making the program more restrictive, some can have the opposite effect. For example, a traditional public assistance requirement that the income of a parent is “deemed” available to a child, thus rendering the child ineligible for means-tested benefits, can also be waived.

To add to the complexity, waiver programs are state-specific and may or may not have published rules about admission standards, waiting lists and ongoing eligibility rules. Some states have state-funded home and community-based programs in addition to federal/state programs. Program rules can vary and program delivery systems can change. For example, North Carolina has recently undergone a restructuring of its various state and federal programs for children who are developmentally disabled and adults with mentally illness. Funding is very limited. “Disorganized” may be the most charitable description of the current situation. The only people who appear to have any firm information about the current availability of waiver program assistance for the developmentally disabled are the case managers and advocates for the disabled. These are the people in the trenches every day trying to assist desperate families through a labyrinth without clear rules and with waiting lists that can be longer than three years.

While lawyers can master the rules they can find, it takes a village to master rules that are not written down and which change without notice. It is no coincidence that many Special Needs Alliance (SNA) lawyers have family members with disabilities.

Watch Out for Waivers.

Here are a few things to keep in mind when working with waiver programs:

• Receiving waiver program benefits in one state is no guarantee that similar benefits will be available after moving to another state. Before moving to another state, check to see what programs are available in that state, the eligibility requirements, the precise help provided and the waiting list time.
• Even in waiver programs where the parents’ resources are not deemed to be available to their disabled child, a sudden inheritance or personal injury settlement that makes a child’s own assets exceed the limit for a means-tested program can prevent or terminate eligibility if not dealt with promptly. SNA lawyers can help in this situation by preparing a Special Needs Trust or counseling about the best way to spend down excess assets promptly if a Trust is not appropriate.
• Unlike regular Medicaid benefits, there may be transfer penalties for home or community-based waiver programs similar to the penalties imposed against SSI for transfers. So take care with gifts. While gifts to individuals of $12,000 or less per year are not counted for tax purposes, they are counted by many public benefit programs for transfer penalty purposes.
• Trustees of Special Needs Trusts for disabled beneficiaries must take particular care not to jeopardize eligibility for waiver or housing programs by making distributions that might, for example, make a beneficiary ineligible for SSI for only one month, but at the same time cause the loss of a hard-won waiver slot that could only be regained, if at all, after another 3-year wait.

Are Waiver Programs the Wave of the Future?

Waiver programs that provide in-home, community-based services can provide invaluable help for families who have children with special needs. How to get and keep that governmental assistance is information that should be equally available to all. Inadequate funding, fragmented administrative structures, variable eligibility requirements, and the mind-boggling complexity of programs that have grown piecemeal all work against equal access to waiver programs by even the most determined families and their advocates. Clear eligibility and waiting-list rules are needed, as are fair administrative procedures for termination. Unfortunately, the light at the end of the tunnel may be an oncoming train.

Proposed Medicaid rule changes (Federal Register/Vol. . 73.No.36/ Friday, February 22, 2008) appear to permit states to adopt State Plans that include a wide variety of programs, many of which are similar to waiver programs in that there are no requirements of comparability, statewide availability, freedom of choice or assurance of transportation to medically-necessary services. These proposed rule changes are designed to save tax dollars by limiting growth of “entitlement” programs and encouraging development of waiver programs that have funding caps and waiting lines. These major rule changes are not yet final. There may still be time for advocates to limit the transformation of the Medicaid program from an entitlement program, with a few very useful waivers, to a waiver program, with only a few entitlements.

If you’re operating a green business in North Carolina, you may qualify for grants from the State. Over the last several years, North Carolina has been allocating funds for businesses and non-profits that are working to improve environmental conditions within the state. In particular, two programs focused on renewable energy and clean water have begun distributing funds to small businesses.

The North Carolina Green Business Fund is a grant program controlled by the North Carolina Board of Science and Technology. The program was set up to encourage small businesses with fewer than 100 employees to grow the green economy in North Carolina by providing funding for business projects focused in certain priority areas set out by the State. These priority areas include biofuels, green building, and renewable energy products. If your business operates within one of these categories and meets the other requirements of the program, you could be eligible to receive up to $100,000 in grants from the State.

2008 grants have already been awarded, but it is likely that the program’s budget will increase in 2009. Proposed budgets from Governor Easley and the North Carolina Senate show that an additional $1 million will most likely be made available to the already $15 million program. Interested businesses should therefore watch very carefully for developments in the program.

Another program is The North Carolina Clean Water Management Trust Fund. This program was established in 1996 to give grants to non-profits, local governments, and state agencies involved in addressing water pollution problems in North Carolina. Recently, however, the program has been expanded to finance innovative efforts, including pilot projects, that seek to improve stormwater management, reduce pollutants entering North Carolina’s waterways, improve water quality, and research alternative solutions to North Carolina’s water quality problems. As of January 2008, the fund had already awarded over $800 million to more than 1,000 grantees. The fund is currently taking applications for grants for 2009, and the deadline to apply is February 1, 2009.

• Additional information regarding the Green Business Fund is available on the website of the North Carolina Board of Science and Technology at www.ncscienceandtechnology.com.
• Additional information regarding the North Carolina Clean Water Management Trust Fund is available on the website of the North Carolina Clean Water Management Trust Fund’s website at www.cwmtf.net.

As seen in Business North Carolina magazine’s special Law Journal, June 2008.

Construction has grown more sophisticated in recent years, as material science, building practices and technology combine to produce better buildings. For better or worse, construction contracting has kept pace with this trend. While this contributes to a more controlled, scientific approach to building, it also makes it easy to get bogged down in contract details and miss the forest for the trees.

A general understanding of construction contracts will help owners negotiate better deals and project results. While contracts ultimately should be reviewed by an attorney, owners can complete much of the preliminary work by considering the basic objectives of a construction agreement, the necessary components of such agreements and when and how to use standardform agreements.

Objectives of a contract
A contract is a promise or set of promises that the law will enforce if either party fails to perform. Most contracts are enforceable — whether written or not — but putting an agreement in writing can help avoid disputes later by setting forth the basic understanding of the parties. It also can allocate the risks inherent in a construction project to one side or the other, establish procedures to govern the construction process and establish legal mechanisms that will set the rights of the parties in the event the agreement is breached, or if certain stated events occur.

Nuts and bolts
When preparing to work out an agreement, it is helpful to have a list of the typical components of a construction agreement. Some items to consider are:

Project scope: What is included in the project and what isn’t? The clearer this can be defined, the better. The plans and specifications should be incorporated by reference and listed by date and page.

Price: How will the owner purchase the project? If the job is lump sum, defining the scope of work included in the stated price is critical because other work will give rise to claims for additional compensation. If the job is cost plus a fee, it is critical to delineate between the types of costs that are reimbursable and those to be paid out of the contractor’s fee.

Timing and payment procedure: If the owner is using bank financing, the lender may impose conditions on disbursement of funds. Payment provisions in the contract should be consistent with lender requirements.

Construction time: Late jobs increase the owner’s costs in financing, alternate facilities and management. Therefore, owners should consider whether to assess liquidated damages for delayed completion. In order to enforce this provision, the owner must establish that the sum established is reasonably related to the actual damages the owner would sustain in the event the job is completed late.

Project management: Does the owner have the capabilities to manage the project details with in house-personnel, or should a third party be retained?

Risk allocation: Typical risks include unforeseen site conditions, material price escalations, hazardous materials, damage to third parties, insolvency of prime contractors or subcontractors and bad weather. Typically, the party with the best ability to manage a risk — or to insure against it — should bear it. While an owner might see advantages to having the contractor assume all risks, that will add to project costs.

Owner termination clauses: Often the owner will need the right to unilaterally terminate the contract for convenience, subject to a formula to compensate the contractor for work completed prior to termination.

Insurance and bonds: Most contractors carry general liability, workers’ compensation and automobile insurance. These typically will not pay an owner if the work under contract is damaged or incorrectly built. A builder’s risk insurance will cover the replacement of the work in the event of a stated loss. Payment and performance bonds protect the owner if the contractor fails to complete the contract or fails to pay its subs. (These are almost always required for public work. In the private sector, bonding is available but the owner will pay the bond cost.)

Work and product warranties: The typical builder warranty is one year for repairs or replacement of defective materials. Extended product warranties may be desired and should be considered.

Valid indemnification provisions: An indemnity is an agreement by one person to defend another party and pay damages that party is obligated to pay to a third party. An automobile insurance policy, for example, will defend the insured against a suit complaining of motor vehicle negligence — and pay any resulting damages. Indemnity provisions are critical risk-shifting mechanisms in construction contracts. The owner usually wants to be indemnified from every other participant. Your attorney should write these provisions to make sure they’re enforceable under state law.

Provisions for changes in the work: The owner will want the abilities to change the work and control additional compensation for the changes.

Legalese: All construction contracts require provisions addressing dispute-resolution procedures, choice of law and venue for disputes, waiver or exclusion of damages and remedies and lien waivers and subordinations. These are best reviewed with your attorney.

Standard construction agreements
The expense of re-inventing the wheel for every project often makes standard agreements more economical than a custom contract. These agreements are published by several industry groups and include owner/architect agreements, owner/contractor agreements, general-conditions agreements and others. These documents are typically arranged in families, which include documents necessary for all parties contracting on a project. It is important that the same form documents be used for all contracts issued on a project so that consistency is achieved.

Forms may be procured for all types of project delivery systems (traditional design-bid-build projects, construction-management contracts, design-build projects, multi-prime, etc.) and for various pay structures (lump-sum, cost-plus, etc.) However, as most documents reflect the needs and interests of the drafter, standard form agreements tend to be biased toward the group that prepared the agreement, which can be a disadvantage in using these forms.

Given the number of options available for the structure of a project — and the number of forms available for contracting on such projects — proper use of a form requires selection of the proper one. It must be closely analyzed to determine what custom modifications are required, given the intended arrangement and understanding of the parties. Otherwise, it’s likely that the expectations of the parties will not correspond to the standard terms of the contract entered.

Success
Hopefully, the explanation of the big picture of construction agreements, plus the nuts and bolts required in most construction agreements, will assist owners in developing, analyzing and negotiating contracts. Remember, better contracts make for better projects.

A common sight along the roadsides of Western North Carolina in the spring and summer is the roadside produce stand, where growers sell fresh produce directly from their fields and orchards. If you are a producer or handler of food products, especially produce, you may have wondered whether you may legally label or call your food products “100 percent organic,” “organic,” or “made with organic ingredients.”

In 1990, Congress passed the Organic Foods Production Act. The two main purposes of this law were to (1) establish national standards governing the marketing of certain agricultural products as organic and (2) to assure consumers that organically produced products meet a consistent standard. For the most part, you may only sell or label an agricultural product as organically produced if you produce and handle your product according to the Organic Foods Production Act.

Of course, there are exceptions, but for the most part, to be sold or labeled as an organic product under the Organic Foods Production Act, the product must meet three criteria: (1) it must have been produced and handled without the use of synthetic chemicals, except for certain approved chemicals which appear on a “National List” created by the Secretary of Agriculture in consultation with the Secretary of Health and Human Services and the Environmental Protection Agency; (2) except for livestock, it must not have been produced on any land to which any prohibited substances, including synthetic chemicals, have been applied during the three years immediately preceding the harvest of the agricultural products. Finally, (3) the product must be produced and handled in compliance with an organic plan agreed to by the producer and handler of the product and the certifying agent.

As with every law, there are exceptions. A production or handling operation that sells agricultural products as “organic” but whose gross agricultural income from organic sales totals $5,000 or less annually is exempt from the certification requirements of the Organic Foods Production Act. The producer or handler must still comply with the applicable organic production and handling requirements of the Organic Foods Production Act and the labeling requirements of the Act. The products from such operations may not be used as ingredients identified as “organic” in processed products produced by another handling operation.

If, for example, you sell “organic” apples from your orchard by the side of the road, and you sell $4,000 worth of apples per year, the certification requirements of the Organic Foods Production Act don’t apply to you. You may not call your products “certified organic” unless you have been formally certified under the Organic Foods Production Act. You may call your apples simply “organic.” However, if you do so, you must still produce and handle your apples in accordance with the Organic Foods Production Act.

Helpful Links:

• Organic Foods Production Act
• Implementing Regulations of the Organic Foods Production Act
• Organic Production
• Organic Food Industry

When parents and their legal counsel have determined that a special needs trust is the best way to preserve means-tested government benefits like Supplemental Security Income (SSI) and Medicaid for their child, they still have some important matters to decide: Who should administer the trust as trustee? Who should monitor the trustee’s performance? Who should advise the trustee about their child’s special needs? There is no single right answer to these questions because the best choices depend on a wide variety of factors and the realities of each family’s situation. This article will attempt to help parents make the best choices for their child. Because a special needs trust must be carefully drafted and administered with great skill, one person or institution rarely has all the skills needed to do the job. Choosing a team to administer a special needs trust may often be the best approach.

There Are a Variety of Special Needs Trust Jobs that Need Filling.

Trustee. Who should be trustee with complete discretion to make distributions that do not jeopardize means-tested government benefits, while improving the beneficiary’s quality of life? Should the trustee be a financial institution like a bank or trust company, an attorney or accountant, a parent, sibling or other individual, or a non-profit pooled trust? Should there be co-trustees? If individuals are named, who will serve as successor or substitute trustee if the original trustee is unable to serve?

Trust Protector. Special needs trusts sometimes name a “trust protector” to monitor the chosen trustee’s performance, appoint a new trustee if necessary, and have the authority to ask a court to modify the trust to comply with changes in the law. If a trust protector will be used, who should be named? Should it be the attorney, the family accountant, a parent or sibling of the beneficiary? If that person can no longer act, who should serve as successor trust protector?

Trust Advisor or Advisory Committee. Special needs trusts may also name a “trust advisor” or an “advisory committee” to advise the trustee about the disabled beneficiary’s special needs. This position could be filled by the beneficiary’s parents, other family members, longtime caregivers, the manager of a group home where the beneficiary resides, a member of the local ARC or NAMI chapter, a case manager, or the beneficiary’s guardian. Who should serve fifty years down the line when the child is a senior citizen? There are many factors to consider.

Factors to Weigh When Making Choices.

1. The Beneficiary’s Age, Circumstances, and Prognosis. This is information that parents know best. What is the nature of the child’s disability? What is the child’s current living arrangement and what may be the child’s future living plans? Does the child have the mental capacity to monitor trust accountings in the long run or must others be assigned to that role? What is the child’s estimated life expectancy? What government benefits is the child currently receiving? What benefits might the child be eligible for in the future and what is the relative importance of those programs to the child’s well being? These factors can influence the choice of trustee, trust protector, or trust advisor.

For example, if a child requires 24/7 care and lives at home, the care-giver parents may simply not have the time or energy to effectively serve as lead trustee. The parents could also have a conflict of interest regarding trust distributions — for instance, it can sometimes be difficult to distinguish between those home improvements and services that are solely for the benefit of the disabled beneficiary and those that also benefit the parents or the disabled child’s siblings. By contrast, if an adult child with a disability is firmly situated in a group home and the parent’s main role is supervisory, the parent may well be the best person to serve as initial trustee, perhaps with younger family members as successor trustees, so long as all individual trustees are clearly authorized to pay for any needed professional assistance regarding trust taxes, government benefits, or investment matters.

2. The Amount, Source and Timing of Funding for the Special Needs Trust. The investment expertise needed to handle a $5 million personal injury settlement is clearly different from the expertise needed to handle a $50,000 inheritance from a child’s grandmother. In the first case, a professional trustee may be advisable with the parent serving as co-trustee or advisory committee member or trust protector. In the second case, a parent or other family member who will not charge a commission could be a better choice of trustee. For such smaller trusts, a professional trustee may not even be an option because they often will not agree to serve as trustee of trusts below a certain amount.

Trusts funded at a parent’s death by bequests in a will, life insurance proceeds, or other death benefits raise more difficult trustee team issues because the parent is not available to serve in any capacity. It is in these circumstances that the existence of a detailed care plan prepared by parents is extremely important to assist the family members or professionals the parents have chosen to look after their child’s special needs.

3. The Skills, Availability and Possible Conflicts of Interest of Trustee Candidates. A special needs trust must be a discretionary, spendthrift trust where the beneficiary has no control whatever over distributions. (See sidebar.) For this reason, the trustee must have absolutely no conflict regarding serving the beneficiary’s interests above all others. The parents often think that they or other family members are best suited to serve as trustee because they love the disabled beneficiary and best understand his or her needs, especially when the family trustee is authorized to seek professional assistance with tax, investment and government benefits issues. A serious problem arises, however, when the parents also want to name the same family member as the residuary beneficiary of the special needs trust to receive any funds left at the beneficiary’s death. This is an obvious conflict of interest because it creates a situation where the trustee will benefit personally from minimizing what is paid out of the trust. If leaving the remainder of the trust to family members is important, parents should consider an independent trustee, perhaps with family members in advisory roles. However, if it is more important for a family member to serve as trustee, the parents might consider naming a charity as the residuary beneficiary.

4. The Availability and Cost of Backup Support for Trustees. Professional trustees like banks, or perhaps the family CPA or regular estate planning attorney, may know how to invest trust funds and do the trust taxes, but may not know much about government benefits rules or the particular needs of a beneficiary over time. These professionals will often need advice from other experts — special needs attorneys, care managers, family care-givers — and the trust instrument should authorize paying for that advice. Similarly, the family member who is closely attuned to the beneficiary’s needs, and who may be an excellent advocate for the beneficiary regarding government benefit programs, is probably not an investment or tax expert. However, the backup help needed to support family member trustees is becoming more widely available as some brokerage firms and trust companies are responding to families’ needs for financial and other support services for special needs trusts.

In other words, help is available, but that help may cost money. Parents should attempt a careful analysis of expected investment advice charges, money management charges, tax preparation charges and attorney fees when considering naming a family member as trustee of a special needs trust. They should compare these charges to the commissions and extra charges that a bank or trust company might charge to serve as trustee, as well as the usually lower commissions charged by non-profit pooled trusts.

Conclusion. Like a Savile Row suit, good special needs planning is tailored to the individual needs and resources of the beneficiary and the realities of his or her family circumstances. Working with a legal advisor to choose a trust team requires a frank and thorough interchange of information and experience. Beware of advisors who present a plan and a trustee choice (often themselves) without this thorough exchange of information and options. There is no one-size-fits-all special needs planning and no one right choice of trustee in all circumstances.

SIDEBAR: A Trustee’s Job Is Complex

A trustee holds legal title to trust assets in a fiduciary capacity for the sole benefit of the beneficiary. Traditionally, a trustee’s job was to invest trust assets wisely, to handle tax matters, to keep good accounts, to avoid co-mingling personal assets with trust assets, to avoid conflicts of interest, to act impartially and loyally towards beneficiaries, and to follow the distribution standards set out in the trust. For example, a simple trust might direct the trustee to distribute all income to the grantor’s spouse and at the spouse’s death distribute the principal to the grantor’s children. A traditional trust might also have a spendthrift provision to protect trust assets from a beneficiary’s creditors.

A trustee of a special needs trust has all the traditional trustee duties plus a primary duty to supplement, not supplant, means-tested government benefits. Instead of clear instructions about distributions, the special needs trustee has complete discretion to make — or not make — distributions for the beneficiary’s special needs.

Basically, a beneficiary of a special needs trust can have no control whatsoever over trust distributions. Special needs trusts are drafted this way so that the assets will be considered “unavailable”for means-tested government benefit programs. If a beneficiary could demand distributions, SSI or Medicaid could declare the beneficiary ineligible because of excess “available resources.”“If you can get it, they can count it”is the classic rule. Whether serving as trustee of a self-settled special needs trust funded with the beneficiary’s own funds or as trustee of a third-party special needs trust funded by others, a special needs trusteemust have a thorough knowledge of the means-tested benefits the beneficiary receives in order to supplement those benefits, not jeopardize them.

From grocery stores specializing in organic foods to green builders, Western North Carolina is home to a growing number of businesses that provide “green” products and services intended to provide benefits to the consumer and the environment. Because of the strong market for these products and services, businesses may be tempted to “greenwash” or exaggerate the environmental benefits of their product or service. Even if a business’ motives are pure, it can be difficult to know how to market products and services because the “green” market is evolving so quickly.

In 1992, the Federal Trade Commission issued its “Guides for the Use of Environmental Marketing Claims”. The Guides, which were updated in 1996 and 1998, provide general direction regarding environmental claims and specifics about the use of certain terms in environmental marketing.

A common-sense emphasis of the Guides is substantiation of environmental claims. If you make any claim regarding an environmental benefit of a product or service, whether it is an express or implied claim, you must have a reasonable basis to substantiate the claim when you make it. In other words, be ready to back up your claims with scientific evidence and don’t rely on assumptions or generalizations.

General claims of environmental benefit are those most likely to be deceptive. The Guides point out that these types of claims are “difficult to interpret, and depending on their context, may convey a wide range of meanings to consumers.” Other disfavored forms of claims are those that overstate environmental benefits, make misleading comparisons, or relate to packaging instead of products or services.

Based on the directives in the Guides, specific claims of environmental benefit are the least likely to be deceptive. Based on this premises, the Guides give useful examples of acceptable usage of phrases such as “biodegradable”, “compostable”, “recyclable”, “recycled content”, and “ozone friendly”. Similarly, the Guides require that the origin and meaning of certifications, seals or recommendations used to market a product or service be clearly explained.

If there are any qualifications or disclosures of the environmental claims being made, they should be sufficiently clear, prominent and understandable. Practically, this means that qualifications and disclosures should be in plain English, in they same font as the claim and close in proximity to the claim, and that there should be no disclaimers that negate the environmental claim.

As green products and services become more popular, businesses should expect higher levels of scrutiny about environmental claims in advertising. The FTC is currently reviewing the Guides and will likely revise and expand the Guides. The best practice for building loyal customers and avoiding liability for deceptive advertising is accurately advertising the known benefits of your product or service.

For more information about the Guides, visit the FTC’s website at www.ftc.gov/bcp/grnrule/guides980427.htm.