As you know, Davis & Gilbert produced our 2014/2015 Lessons Learned Practical Advice document, where our lawyers highlight major developments in the marketing communications industry, and offer tips and best practices for marketers and their agencies in 2015. To view the full 2014/2015 Lessons Learned Practical Advice document, click here. This week, I wanted to share with you the section I co-authored with Matt Smith on environmental marketing.
2014 was another active year for environmental marketing claims, as consumers showed an increasing willingness to change their purchasing behavior based on environmental impact, and regulators made good on their promise to ramp up enforcement. Although the Federal Trade Commission (FTC) sent a strong message to marketers that it takes environmental marketing claims seriously, its principal focus continued to be on the same green claims it addressed in 2013: biodegradability claims and recycling claims.
Previous enforcement actions in the biodegradability area typically focused on the fact that many marketers failed to account for “customary disposal” (i.e., landfills) when making degradability claims. In 2014, the FTC focused its attention on products – especially those made of plastic – containing special additives intended to cause them to degrade in garbage disposal conditions. According to the FTC, when it came to typical U.S. landfills, even special additives were unlikely to result in the products degrading within the necessary one year timeframe. What now should be clear to all marketers is that the FTC strongly disfavors any type of degradability claim for products likely to end up in the trash.
Companies that make plastic lumber products also came under scrutiny for allegedly overstating the amount of recycled content with which their products were made. Additionally, claims that their products were 100 percent recyclable were challenged as being misleading even though technically true, because many of the recycling centers accessible to consumers would not accept the products and the “recycling return” programs created by marketers to account for this were not “a financially reasonable option” for most consumers.
The FTC also proposed changes to its Energy Labeling Rule, which governs labels for many household appliances. The changes would expand the kinds of products covered by the rule and also would modernize the program by establishing an easy-to-reference online label database.
The Way I See It:
- Marketers must carefully consider how their products will be used by consumers in “real world” conditions when making any green product claims.
- Because the FTC has spent the past two years focusing on the same kinds of environmental claims, 2015 should be the year that it shifts its attention to the other green claims covered under the Green Guides.