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2017 Trends in Marketing Communications Law

Environmental >> Green Claims May Be Heating Up

April 11, 2017

Although the climate change rhetoric coming out of Washington, D.C. may have some believing that regulatory scrutiny of "green" claims will soften, a closer look at the current political and social climate at the state level and in the private sector reveals that both the demand for green products and the use (and regulation) of green marketing claims actually could trend upwards this year.

It has become clear that a substantial segment of U.S. consumers are attracted to companies they perceive as doing something to combat environmental destruction. These consumers are willing to reward those companies through higher prices for environmentally-friendly products and services.

Companies are responding to consumer demand by working to develop innovative solutions to reverse the trend of environmental damage, but the Volkswagen emissions-test scandal suggests that some companies will go to great lengths to give their products a green hue even if undeserved. As a result, many state governors and attorneys general have made clear their intention to continue to strictly monitor and regulate advertisers' green claims. For example, ExxonMobil has been in the crosshairs of multiple state attorneys general investigating whether the energy company misrepresented its research about climate risks to the public.

Competitors have also been aggressively monitoring what they perceive to be "greenwashing" in their industries. For example, Energizer challenged advertising by LEI, which claimed the purchase and use of its products was a "carbon neutral" activity. In defense of these claims, LEI relied on third-party certifications it had received; however, the National Advertising Division of the Council of Better Business Bureaus (NAD) reminded LEI that, under the Federal Trade Commission's Green Guides, third-party certifications did not eliminate a marketer's obligation to ensure that it had substantiation for claims communicated by the certification, and it recommended that LEI discontinue these claims.

Marketers touting an environmental benefit must determine the legal way to communicate their claims. Toward that end, they should carefully consider how their products will be used by consumers in "real world" conditions when making green product claims.

Key Takeaways

  • Marketers should avoid general unqualified positive environmental benefit claims such as "green" or "eco-friendly" because they are difficult to substantiate and may convey to consumers that a product has far-reaching environmental benefits and no negative environmental impact.
  • Marketers should also ensure that all environmental claims are properly qualified and are supported by competent and reliable scientific evidence.
  • In addition, marketers should understand and not misrepresent the true environmental cost of their product or service and should consider the environmental cost of manufacturing, disposal, use or shipping of the product or service.