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10 Ways to Avoid Making Suspect Green Advertising Claims

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Global warming is certainly one of the hottest topics today. Individuals are rightly concerned with the fate of our planet. And governments are increasingly taking steps to address this, and other significant, environmental problems.

Businesses are increasingly getting into the act and offering consumers "green" alternatives, like the Toyota Prius, green home environmental products, organic and natural personal care products, environmentally preferable building products, and other green products and services.

It is important that consumers are able to rely on the advertiser's "green" advertising claims. This article lists 10 questions that you should ask when you are preparing an advertisement that highlights what you believe gives your product a "green" advantage. Your goal is to proclaim your product's environmental advantages while avoiding inadvertently making any green claims that you can't back up. The areas covered by this article include substantiation, general versus specific environmental claims, exaggerated or overstated environmental attributes or benefits, and many other green advertising topics. While it is only a starting point, we believe that it will give you 10 Ways to Avoid Making Suspect Green Advertising Claims:


1. Can You Substantiate All of the Express or Implied Environmental Claims Appearing in Your Advertisement?


If you're an advertiser who make express or implied claims about the attributes of your product, package or service, you must be able to substantiate all of your advertising claims. When it comes to green advertising claims, this means that you may be required to have competent and reliable scientific evidence (e.g., tests, analyses, research, studies) to back up such claims. You might consider mentioning such tests in the ad itself (if it's in print or on the Internet). Remember, however, that a consumer may very well write or call you to ask if such information is available for him or her to read. So be sure to have that information on hand at all times.


2. Can a Consumer Tell If the Green Advertising Claim Refers to the Product,
the Packaging or Both?


When you make a green advertising claim, you should be aware that a consumer reading that claim should be able to figure out whether you are talking about the product, the packaging or both. If not, chances are that the Federal Trade Commission could consider the claim to be false or deceptive. Under FTC's Environmental Guides, "An environmental marketing claim should specify whether it refers to the product, the packaging or both, or just to a component of the product or its packaging." Here's an example:

A cereal box is labeled "recycled package." The package consists of a paperboard box with a wax paper bag inside holding the cereal. But what does the advertiser mean by this claim? Does it refer to the box only? Does it refer to only the bag? Or does it refer to both? This type of claim is ambiguous. And the claim is deceptive if only the box is recycled. If the box alone were recycled, a non-deceptive claim would have qualified so as to say, for example, "recycled box."


3. Does Your Advertisement Exaggerate or Overstate
Environmental Attributes or Benefits?


Let's take the example of a banner ad on a calendar publisher's website that says,

"Our Calendars now contain 50% more recycled content than before."

It sounds like these calendars provide a great environmental benefit. However, lat's say that the publisher merely had increased the recycled content of its calendars from 2% recycled material to 3% recycled material. So while the claim is technically correct, the banner ad is likely to convey the false impression that the use of recycled material was increased significantly.

If you read the ad carefully, the question arises, just how much recycled content was in this product before? If the advertiser doesn't answer that question with specificity, a red flag is raised that the claim may be an exaggeration.


4. Do You Make any Comparative Environmental Claims in Your Advertisement?


Let's use the same calendar publishing company as above. But this time the advertiser places this statement on the front of its 2008 calendar:

"50% more recycled content"

Again, it does sound like the calendar offers a significant environmental benefit. However, this claim is ambiguous because there's no way to tell whether the claim is a comparison to the publisher's 2007 calendar or to a competitor's calendar. To eliminate this ambiguity, the advertiser should have made the basis for the comparison clear, by saying, for example,

"50% more recycled content than our 2007 calendar"


5. Does Your Advertisement Make a General Environmental Claim?


Examine your proposed advertisement closely to determine whether your ad is making a general environmental claim or a specific claim. Specific environmental claims are easier to substantiate than general claims. Moreover, they are less likely to be deceptive. An unqualified general claim of environmental benefit may convey the notion that your product has far-reaching environmental benefits, when it doesn't.

Let's take the example of the cloth shopping bag that is labeled "eco-friendly." This claim may or may not be deceptive. This claim would be deceptive if it leads a consumer to believe that the bag has environmental benefits that the advertiser cannot back up. It would not be deceptive if the "eco-friendly" label was followed by clear and prominent language limiting the "friendly" representation to the product attribute for which it could be substantiated, and if the context didn't create any other deceptive implications. A qualification for the "eco-friendly" claim--assuming that the advertiser can substantiate this claim--would be:

"This cloth bag is reusable and is made from 100% recycled fibers."


6. Does Your Product Label Contain Eco-Seals,
Seals-of-Approval or Certifications?


Are you able to utilize environmental seals-of-approval, eco-seals and certifications from third-party organizations on your product?. Such seals and certifications imply that your product is environmentally superior to other products. However, be aware that such broad superiority claims aren't easy for advertisers to substantiate. This will require significant research on your part before you can use such seals and make such claims.

Keep in mind that FTC analyzes third-party certification claims to make sure that they're substantiated and not deceptive. Third-party certification does not insulate an advertiser from Commission scrutiny or eliminate an advertiser's obligation to ensure for itself that the claims communicated by the certification are substantiated. Here is an example:

"Great Paper Company sells photocopy paper whose packaging has a seal-of-approval from the No Chlorine Products Association that states `totally chlorine-free paper.' An explanation under the seal-of-approval says the paper production process did not use pulp produced with chlorine or compounds containing chlorine as bleaching agents. Using the highest industry standards, the No Chlorine Products Association certifies that products are chlorine-free only after industry experts have conducted comprehensive mill audits. The claim is unlikely to be deceptive." (See FTC Publication, "Complying with the Environmental Marketing Guides".)


7. Do Your Ads Make any "Degradable," "Biodegradable" or "Photodegradable" Claims?


These claims mean that the materials will break down and return to nature within a reasonably short time after customary disposal. What a "reasonably short time" is depends on where the product is disposed.

For example, in landfills, where most garbage is taken, materials degrade very slowly, if at all. So it's difficult to substantiate a claim that a product normally disposed of in a landfill is "biodegradable," "degradable" or "photodegradable."

However, biodegradable claims for products that go down the drain, like detergents and shampoos, may be substantiated if the product will degrade in wastewater treatment systems. A "reasonably short period of time" for biodegradability of products like detergents and shampoos that go into the wastewater treatment systems would be about the same time that it takes for sewage to be processed in the wastewater treatment systems.


8. Does Your Ad Make "Compostable" Claims?


"Compostable" claims are appropriate on products or packages that will break down, or become part of usable compost (e.g., mulch), in a safe and timely manner in home compost piles. For composting, a "timely manner" is approximately the same time that it takes organic compounds, like leaves, grass, and food stuff, to compost.

Claims for a product that's "compostable" in a municipal or institutional composting facility - but that won't break down quickly enough to be compostable in home compost piles - may need to be qualified to avoid deception about the limited availability of municipal or institutional composting facilities. Consumers are likely to understand "compostable" claims to mean that the product can be composted at home or in their community. If it isn't, the "compostable" claim should be accompanied by an explanation. For example, a lawn and leaf bag might say,

"Appropriate composting facilities may not be available in your area."


9. Are "Recyclable Claims" Made on Your Product Labels or in Your Ads?


These ad claims mean that the products can be collected, separated or recovered from the solid waste stream and used again, or reused in the manufacture or assembly of another package or product through an established recycling program. A claim of recyclability should make clear to consumers whether it refers to the product, the package or both.

Unless the entire product or package is recyclable, the claim should specifically indicate which parts of the product or package are recyclable. If only minor or incidental components aren't recyclable, the claim needn't be qualified.


10. Are there "Please Recycle" Claims on Your Products or Packages?


Consumers interpret the phrase "Please Recycle" on products or packages to mean that the product or package is "recyclable." Accordingly, the same guidelines for making "recyclable" claims apply to "Please Recycle" claims.

Other Green Advertising-Related Websites

  • Green Advertising. A green advertising and marketing agency.
  • Eco Friendly Comparison Shopping. Shopping resource that "brings socially responsible merchants together so visitors can shop, browse, compare and review thousands of sustainable products in the convenience of one web site."
  • Green Building Law Blog. Pre-Consumer, Non-Recycled Content Regarding Green Building And The Law.
  • Major Environmental Laws. Over a dozen major statutes or laws form the legal basis for the programs of the Environmental Protection Agency (EPA). You will find the full text of these laws here.
  • Environmental law. Cornell University Law School.

 

Additional Information

Complying with Environmental Marketing Guides: FTC Publication

The Federal Trade Commission (FTC) has the power to bring law enforcement actions against false or misleading marketing claims, including environmental or "green" marketing claims. The FTC issued its Environmental Guides, often referred to as the "Green Guides," in 1992, and revised them most recently in 1998. The Guides indicate how the Commission will apply Section 5 of the FTC Act, which bars unfair or deceptive acts or practices, to environmental marketing claims.

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JLCom Publishing Co., LLC is the publisher of Advertising Compliance Service. For over 32 years, Advertising Compliance Service has been the authoritative, comprehensive source of information for advertising lawyers as well as advertisers and advertising agencies--and their attorneys--in the advertising law area. In-house counsel and outside counsel alike regularly rely on Advertising Compliance Service. Among the 26 areas regularly covered by this newsletter/reference service are these tabs touched upon in this article: Tab #2, General Articles; Tab #4, False, Unfair, Deceptive; Tab #5, Substantiation; Tab #6, Comparative Ads; Tab #15, New Media; and Tab #17, Food, Drugs, Cosmetics.

 

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