It’s not easy to sell green – Advertising, marketing and branding

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As green marketing proliferates, so does the risk of greenwashing allegations — from consumer class action lawsuits, state and federal regulators, competitors, and even investors. On top of that, new legislation is constantly changing the compliance landscape, leaving retailers to navigate a maze of often vague new rules and regulations.

Planned Updates to Green Guides The Federal Trade Commission’s “Guides to the Use of Environmental Marketing Claims” (16 CFR § 620) is the most frequently cited authority on the best practices a company should adopt when she touts her environmental efforts.1 The “Green Guides”, as they are commonly called, are intended to help marketers avoid making unfair or misleading environmental marketing claims under FTC Section 5, 15 USC § 45. D generally speaking, they address a central theme – a depiction or omission of a “green” product, product component or retailer practices is “misleading if it is likely to mislead consumers”. consumers acting reasonably in the circumstances and is material to consumer decisions”. (See here for more information.)

Although not legally binding, the Green Guides are regularly cited by courts, state and federal regulators when filing lawsuits, arbitration bodies, and plaintiffs filing class actions to determine how reasonable consumers can interpret disputed claims. Additionally, several states, including California, Maine, Rhode Island, and New York, have explicitly adopted significant portions (or all) of the Green Guides into state law.2 Although some states incorporate the idea that green guides are a “safe harbor” or defense against an allegation that a state environmental marketing law may be violated, in practice these provisions can be helpful. limited. Indeed, compliance with green guides is, in some cases, a question of fact that courts are reluctant to address in the early stages of litigation.

Steptoe’s retail and e-commerce practice outlines the most important guidelines and dispute trends, and shares some tips on how retailers can reduce the risk of seeing red when trying to sell green, in the attached Need to Know guide.

Footnotes

1 https://www.ftc.gov/legal-library/browse/federal-register-notices/guides-use-environmental-marketing-claims-green-guides

2 Some states have adopted more stringent environmental requirements. California, for example, has several green advertising laws, including a long-standing ban on “any false, misleading, or deceptive environmental marketing claim, express or implied,” and requires advertisers to keep records at the support of all green claims. cal. Bus. & Code Prof. § 17580.5(a). The same status incorporates respect for the Green Guides as a safe harbor

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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