12.2.5.6

Objective:

1. A. These regulations are intended to accomplish two principal objectives. The first is to deter unfair and deceptive practices that result in economic harm to consumers. The second is to encourage fair competition by providing clear legal standards for environmental marketing claims to facilitate compliance with and enforcement of the law.
2. B. In recent years consumers have increasingly made purchasing decisions based upon their perception of the environmental attributes and benefits of various products and packaging. Similarly, persons marketing products and packaging have increasingly made reference to the environmental attributes and benefits of their products and packaging in advertising and sales presentations.
3. C. Unlike some other kinds of advertising, environmental marketing claims are difficult, if not impossible, for consumers to evaluate on their own. Scientific testing is normally required to determine whether an environmental marketing claim is true. Consumers are not in a position to make independent evaluations of such claims. Regulations are needed to ensure that advertising and sales practices are not unfair or deceptive, that such practices conform to legitimate consumer expectations and that all marketers and advertisers are placed on an equal competitive footing. The attorney general has therefore concluded that regulation of environmental marketing claims is in the public interest and will promote the health, safety and general welfare of the citizens of New Mexico.
4. D. These regulations provide a basis for evaluating environmental marketing claims. They reflect provisions of New Mexico law, but do not necessarily cover every possible deceptive marketing practice. Therefore, it is not intended that literal compliance with these regulations be an absolute protection against liability for deceptive environmental marketing claims. Marketers and advertisers must review their environmental marketing claims in light of the purpose of the regulations.
5. E. The federal trade commission has promulgated Guides for the Use of Environmental Marketing Claims. See, 16 C.F.R. 260. These guides apply to such claims in or affecting commerce. To the extent possible, these regulations follow the federal trade commission’s guides both out of deference to the legislative directive that interpretation of the Unfair Practices Act be guided by the commission’s interpretations and to reduce the burden on business by avoiding conflicting regulatory requirements.

6. F. Before promulgating these regulations, notice of the proposed action was published on January 15, 1994 in the New Mexico Register, Volume V, No. 1, pursuant to AG 92-3-1.3(A) [now 12.2.1.9 NMAC], and a public hearing was held on March 2, 1994 in Santa Fe. All comments received during the hearing were considered in the revision of the regulations finally promulgated. Representatives of the New Mexico grocers association, the general services department of the state of New Mexico, New Mexico PIRG, the New Mexico environment department and the owner of a diaper service testified at the hearing. This office also solicited written comments on the regulations. Twelve written comments were received reflecting the views of a variety of business interests, government agencies and New Mexico PIRG. All comments received were considered.

   [5/1/98; Recompiled 10/15/01]