Sustainability Advertising: Key Takeaways | Perkins CoieSeptember 9, 2021
Consumers and brands are well aware of the benefits of environmentally friendly products. A recent report found that nearly 89% of brands implementing sustainability initiatives see an improvement in brand reputation. However, brands should take care to comply with applicable state and federal guidance and legal requirements, as regulators, competitors, and class action attorneys continue to scrutinize eco-friendly marketing. In this issue of the Perkins Coie Summer Sustainability Series, we discuss best practices based on Federal Trade Commission (FTC) guidance and the most recent green advertising litigation trends.
The FTC’s guidelines regarding environmental and sustainability advertising claims are generally referred to as the “Green Guides.” The Green Guides warn marketers against making broad and unqualified environmental claims. This is because, according to the FTC, such claims may convey a wide range of meanings and brands likely cannot substantiate all reasonable interpretations of these claims. For example, the Green Guides warn that a broad claim such as “eco-friendly” or “green” may convey multiple meanings to consumers. At a high level, the Green Guides caution advertisers to:
- Not overstate the claimed environmental attribute or benefit;
- Identify what component of the product or service the environmental claims apply to; and
- Comply with guidance for various specific environmental claims, such as advertising regarding carbon offsets, the ability to compost a product or package, “non-toxic” claims, and “ozone-safe” or “ozone-friendly” claims, to name only a few.
The Green Guides also reiterate general truth-in-advertising standards, including:
- Ensure that the basis for any comparative claim is clear and substantiated;
- Support green advertising and other technical and science-based claims with competent and reliable scientific evidence; and
- Clearly and prominently disclose necessary qualifications in an understandable manner.
Some states, such as Rhode Island and Maine, have explicitly incorporated the Green Guides by reference into state law. Other states, such as California, have enacted statutes with their own guidelines for environmental marketing claims while also incorporating the Green Guides by reference.
A Closer Look at Specific “Green” Claims
While marketers should take care with all environmental claims, we highlight the following best practices for certain specific claims based on recent litigation and enforcement trends.
According to the Green Guides, marketers should clearly and prominently qualify recyclable claims to avoid potentially misrepresenting the availability of recycling programs and collection sites to consumers. The Green Guides specifically state that:
- Unqualified recyclable claims should only be used for products if recycling facilities are available to a substantial majority (at least 60%) of consumers or communities where the product…