Authored by: Elliot Laws, Senior Counsel, Pillsbury
August 5, 2008
A famous cartoon frog once lamented, “It’s not easy being green.” What Kermit didn’t realize was how prescient his jingle would ring in the decades to follow. Today, consumers are faced with a new reality: “It’s not easy to know when someone who claims to be green, is actually green.”
Consumer Difficulty: What is Actually Green?
With today’s commercial emphasis on a cleaner and more sustainable America, it seems that green practices are the new “motherhood and apple pie” of the twenty-first century.
While few would question the importance of sustainable practices to protect the environment, minimize our carbon footprint, and reduce waste output, “greening” is more complicated than it sounds.
There is a new “green sector” in our economy, with manufacturers, retailers, builders and developers jumping on the bandwagon, without stopping to ask or answer the question: “what is green anyway?” What does the term mean? And how is every Tom, Dick, and Mary with a new “green“ product to pitch held to fair and consistent advertising, promotion, and production standards? More importantly, how is the consumer supposed to figure it all out?
This column looks at the federal government’s role in helping to ensure a level playing field for all producers, promoters, and advertisers with regard to the kinds of green claims they can make. Citizens are buying scores of these products and very often paying a premium. How do they know what they are getting? What are the protections available through the Federal Trade Commission that insure that green marketing is clean marketing?
Green Guides and Green Washing
In 1992, the Federal Trade Commission (FTC) issued guidelines to deter deceptive marketing claims of a product’s environmentally friendly attributes. Officially titled “Guides for the Use of Environmental Marketing Claims – 16 C.F.R. Part 260,” Green Guides perform a critical function: they provide examples of acceptable and unacceptable marketing claims for each category, including: Recyclable/Recycled Content/Source Reduction Claims; Degradability/Compostability; Ozone Safe/Friendly Claims; General Environmental Benefit Claim. The policy was issued during the first wave of green products in order to prevent false and misleading claims. Initially, the FTC brought a series of enforcement actions, but there has been little enforcement since mid 1990’s.
Today, there is a new buzzword to describe this deceptive marketing: “green washing.” However, due to a lack of available information and reliable standards, the ability for consumers to assess the accuracy of these claims is limited.
The FTC’s response has been pursue an update to its Green Guides to help demystify the claims surrounding these new products for consumers and to hold producers, promoters and advertisers to a higher standard. Green Guides are a product of the growing corporate and consumer awareness of environmental issues and concurrent demand for a tool to help sift through the hyperbole and separate the truly green products from the pretenders.
The Green Guides were scheduled for a systematic review and updating in 2009, but due to the large increase in green marketing claims and the evolution in the types of claims being made, the FTC accelerated its schedule to review the Green Guides in 2008.
Public meetings have been held to address this growing challenge. They have addressed issues from greenhouse gas emissions to standards related to green buildings. Additional public meetings may be scheduled in the future before the FTC decides whether an update is necessary and what changes and additions are required.
“Sustainable” and “renewable” claims could also be covered by the new version of the Green Guides, along with provisions on Carbon Offsets and Renewable Energy Certificates (RECs). They are looking at Incorporating 3rd Party Certification of green claims and establishing ISO standards on environmental marketing claims and Life Cycle Assessments for guidance. While it is unclear what changes FTC will make to current Green Guides and when they will be re-issued, it is likely that they will encompass new technologies, products, and types of marketing claims.
While it may take some time for the process of managing sustainable products and practices to catch up with the burgeoning field of green products, some progress has been made. Until updated guidance on green marketing claims is in place, a healthy skepticism on the part of consumers and more caution on the part of manufacturers, promoters, and advertisers before making green claims and promises is well advised.