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.
Posted by the Van Winkle Law Firm
April 25, 2008, 11:06 am
by Anna S. Mills