With the rapid increase in green marketing and use of terms such as “environmentally-friendly” and “carbon-neutral,” consumers are finding themselves unable to determine which claims are legitimate and which are simply “green washing.” Regulatory bodies at the state and federal level are responding by modifying now outdated regulations to protect consumers.
The Federal Trade Commission (“FTC”) is expected to announce revisions to its “Green Guides” to environmental marketing this year. These Green Guides serve to prevent unfair or deceptive practices related to claims that a product or service is “green.” The FTC’s goal is to reduce uncertainty and otherwise lend credibility to the green market. Following much discussion within the industry, it is expected that the modified Green Guides will require companies substantiate their green claims with documentation and third-party studies. The revisions will likely have the most impact industries involved with green building or packaging, as well as companies involved with cap and trade or carbon-offset markets.
On the state level, certain states – including California, Delaware and Texas – have adopted statutes expressly prohibiting misleading environmental marketing. It is expected that more states will follow suit and adopt such regulations along the lines of federal trademark acts, like the Lanham Act, which expressly prohibits false or misleading advertising.
With new regulations comes more exposure to litigation. Accordingly, companies are well-advised to consult with legal professionals prior to embarking on a new “green” advertising or marketing campaign. Such professionals can help ensure the company’s claims are substantiated and do not run counter to the emerging laws.
The attorneys within SGR’s Sustainability Practice Group are prepared to assist and advise clients on the necessary considerations and legal ramifications. For more information, please contact any member of our Sustainability Practice Group, including:
Stephen E. O’Day, Partner
(404)815-3527, soday@sgrlaw.com
Terry Ferraro Schwartz, Partner
404-815-3731, tschwartz@sgrlaw.com
Jessica Lee Reece, Associate
(404) 815-3743, jreece@sgrlaw.com