Weeding Out the Rotten Apples: A Third-Party Certification Regime and Strengthened FTC Authority

Authors

• Aaron M. Dubin-Ramos, Benjamin N. Cardozo School of LawFollow

Abstract

he rise in greenwashing, a business practice that misleads consumers and investors about one’s environmental performance, has sparked debate regarding the best avenue for mitigating such a phenomenon. Common proposals include private lawsuits, the Federal Trade Commission’s Green Guides, the Securities and Exchange Commission’s antifraud regime under Rule 10b-5 of the Securities Exchange Act of 1934, state frameworks, or the International Social and Environmental Accreditation and Labelling Alliance. However, each response presents flaws, such as a potential rise in greenhushing, nonbinding guidance, narrow applicability to greenwashing claims, alignment with the anti-Environmental, Social, and Governance political movement, and buy-in issues. This Note dissects these imperfections and asserts that third-party certifiers overseen by the Federal Trade Commission (FTC) offer a promising solution thanks to their industry knowledge, familiarity with their clients’ products and services, and rigorous examinations. This Note simultaneously raises instances of poor oversight and conflicts of interest to inform the reader of crucial improvements to the third-party certification process and the necessity of an overarching body, the FTC. For the FTC to properly oversee third-party certifiers, Congress must amend the Federal Trade Commission Act, which restricts the FTC from establishing standards for certifiers. An amendment would allow the FTC to promulgate a trade regulation rule: a robust antigreenwashing regime under which the FTC would govern certifiers. In the form of a legal catalog, the regime would balance the strengths of a legal rule, namely certainty, with the flexibility and adaptability of a legal standard, resulting in coherent requirements for certifiers. This proposal would not only ensure accountability, independence, and honesty among certifiers but also weed out the greenwashing businesses from the marketplace.

Disciplines

Consumer Protection Law | Environmental Law

Recommended Citation

Aaron M. Dubin-Ramos, Weeding Out the Rotten Apples: A Third-Party Certification Regime and Strengthened FTC Authority, 47 Cardozo L. Rev. 1727 (2026).
Available at: https://larc.cardozo.yu.edu/clr/vol47/iss5/7