There were significant changes in almost every aspect of the law relating to advertising, marketing and promotions in 2013, and Davis & Gilbert published a piece entitled, “2013 Lessons Learned and 2014 Practical Advice.” This piece explains and discuss what happened, and offer suggestions for advertisers and agencies to think about and address in 2014.

Over the next few weeks, I will share with you a few pieces I authored on the topics of: Environmental marketing, National Advertising Division of the Council of Better Business Bureaus rulings, and the Federal Trade Commission’s changes to its regulations and guidelines in.

Environmental marketing made a significant comeback in 2013. After years of diminished standing during the Great Recession, green issues were again on the minds of consumers, advertisers and regulators. Factors such as an improving economy and a seemingly endless series of “once-in-a-lifetime” weather events, as well as the release by the Federal Trade Commission (FTC) of its updated Green Guides in October 2012, all contributed to environmental impact being an increasing focus of marketing.

Regulators used the first full year of the new Green Guides to send a message to the marketplace that green marketing practices were very much on their radar. The FTC alone settled 14 separate enforcement actions based on what it considered to be misleading or deceptive environmental marketing claims. Green claims also were the focus of many state attorney general investigations, private litigations and industry self-regulatory actions over the last year.

Interestingly, although the updated Green Guides contain a lot of guidance about environmental issues never before covered, much of last year’s regulatory scrutiny involved more “traditional” green claims – such as degradability – for which guidance long had been provided by the FTC and that also had been the subject of many previous enforcement actions. In other words, regulators used 2013 to enforce long established principles of green marketing, meaning that 2014 likely will be the year regulatory scrutiny turns to “new” concerns, such as the FTC’s new “de facto” ban on unqualified general environmental marketing claims.

The Way I See it

In 2014, advertisers and agencies will need to:

  • Expect regulatory scrutiny and be especially cautious when making marketing claims about “new” environmental issues, including reductions in carbon emissions or the use of renewable energies; be specific and work closely with counsel early to ascertain how different claims might have to be qualified.
  • Understand that with green marketing, it is critical to consider the overall net impression of the ad so as to ensure it is not making claims – including through its visuals, use of third party seals or use of “green” trade names – that cannot be supported (e.g., an unqualified general environmental benefit claim).
  • Keep in mind that green claims often require a lot of qualifying and explanatory information to be properly understood, and merely referencing a website with details about the environmental claim is not acceptable to the FTC. Therefore, it is important to carefully consider the intended media and its limitations (e.g., social media, mobile marketing) when determining how, or even if, a certain environmental claim should be made.