Think GreenThe marketing communications industry experienced a number of important changes in 2015. In the third edition of our Lessons Learned/Practical Advice publication, lawyers from Davis & Gilbert explore the key regulatory developments, statutory changes, and court decisions in numerous areas such as children’s advertising, entertainment, social media, trademark, and data security. To read the full publication, click here.  In addition, each article suggests steps that marketers and agencies may take to decrease risks and help ensure compliance with applicable laws and regulations.

Over the next few weeks, I will be sharing with you a few articles I co-authored. I am kicking off this series with my article on green marketing that I co-authored with Davis & Gilbert Advertising, Marketing & Promotions Partner, Matt Smith.

Green Marketing:

Environmental concerns dominated the headlines throughout 2015. For marketers, this meant an increase in the development and supply of environmentally conscious products and services and a renewed focus on “green” attributes in their marketing. Not surprisingly, consumers and regulators responded by increasing their scrutiny of “green marketing” and their willingness to take legal action based on perceived “green washing.”

As in years past, the Federal Trade Commission (FTC) remained the most active regulator of environmental benefit marketing claims, seeking to ensure that all “green marketing,” regardless of media, complied with its Guides for the Use of Environmental Marketing Claims (Guides). It sent warning letters to manufacturers and retail sellers of certain “green” products and services, reminding them that it monitored the marketplace and would challenge advertising it deemed inconsistent with the Guides. The specific recipients were not disclosed, but the form letters were made public, as was the general business description of the recipients: makers and sellers of certain “biodegradable” products and companies issuing “green seal” certifications and advertisers using those certifications. In each instance, the FTC stated that it did not believe that the “green claims” were truthful and non-misleading or that the express and implied advertising claims had been properly substantiated, and it urged the companies to modify their marketing materials to avoid further regulatory action. The FTC’s conclusions were based on its review of the advertising’s express claims as well as implied claims reasonably taken away after viewing the advertising, including from its overall “net impression.”

The FTC also continued to pursue enforcement actions against manufacturers and marketers based on their allegedly deceptive and misleading environmental benefit marketing. However, unlike in previous “green” challenges, the FTC successfully challenged “green” claims that were based on seemingly reliable substantiation. In its action against ECM Biofilms, Inc., the FTC specifically rejected ECM’s substantiation for biodegradability claims, even though the tests had been based on an international test method. The FTC found that because ECM’s testing had not simulated the physical conditions found in most U.S. landfills, it was not “competent and reliable scientific evidence.”

The Way I See It:

  • Expect a dramatic increase in the use of “green marketing” claims, as brands try to convince consumers that they are a part of the solution, not the problem.
  • Expect intense scrutiny of “green” claims by consumers, regulators, and competitors, and that each group will take legal action when suspicions of “green washing” exist.