Green, Intellectual Property Articles

Advertisers Should Use Caution When Making Environmental Marketing Claims
by Leila C. Knox

October 07, 2008

Companies that advertise their goods or services as "green" or "environmentally friendly" should use caution in making marketing claims that could get them in trouble with consumers and/or the Federal Trade Commission ("FTC").  California law prohibits advertisers from making any "untruthful, deceptive, or misleading environmental marketing claim, whether explicit or implied."  See Cal. Bus. & Prof. Code §17580.5.  The FTC also has issued a set of guidelines for environmental claims such as "recyclable," "reusable," "eco-friendly," "environmentally safe," "biodegradable," and "compostable."  SeeFTC's Guides for the Use of Environmental Marketing Claims (the "Guides").  Following are general principles and specific do's and don'ts for green advertisers.

General Principles of Environmental Marketing

  • Claims should be clear:  Environmental marketing claims should generally be "sufficiently clear, prominent and understandable to prevent deception."  In other words, make it simple. 
  • Claims should be specific:  Distinguish between whether the environmental marketing claim applies to the product itself, the product's packaging, or to a portion of the product or its packaging.  For example, a box containing a product that is labeled "recyclable" should identify what is recyclable – the product or the box. 
  • Overstatements:  Do not overstate the environmental attributes of a particular product, even if the statement is technically true.  It is an overstatement to state that a trash bag is "recyclable" since a consumer is likely to put recyclable and non-recyclable materials into the trash bag, and thus the bag will likely end up in a landfill, not at a recycling center. 
  • Vague comparative claims:  A label that states "20% more recycled content" could be misleading.  Would a reasonable consumer understand such a statement to mean the advertiser's bottle contains 20% more recycled material than its competitor's bottle or 20% more recycled material than its previous bottle?  The use of clearer language such as, "20% more recycled content than our previous package" is proper. 

Making Specific Environmental Claims:

  • "Eco-Safe," "Environmentally Safe" – Such claims are fine if followed by an explanation of how a product is "eco safe" or "environmentally safe."  Is the product itself free of toxins that are harmful to humans and/or the environment, or is the product manufactured in such a way that impacts to the environment are minimal? 
  • "Environmentally Friendly" – Specify how the product is "environmentally friendly."  Is the product made from recycled materials?  Is the product made in an "environmentally friendly" way or transported to market in an "environmentally friendly" manner?  Use "environmentally friendly" with explanatory specifics.
  • "Non-Toxic" – A consumer might interpret such a claim to mean that the advertised product is safe for both the environment and for humans, when it may only be non-harmful to one or the other.  Specify exactly who or what benefits from the non-toxicity of the product.
  • "Environmentally Preferable," "Earth Smart" – Such statements convey to consumers that the advertiser's product is environmentally superior in every way to all other products.  Unless such a claim can be substantiated, broad statements such as these should be accompanied by clear and prominent qualifying language stating the specific ways that the products are environmentally superior. 
  • "Biodegradable,"  "Photodegradable" – Stating that product packaging is "biodegradable" means that it will completely break down and return to nature within a reasonably short period of time.  If only a portion of a product or its packaging is biodegradable, the statement should be qualified.
  • "Compostable" – A product that is "compostable" will safely break down in a reasonable amount of time into usable compost, which is soil-enriching material such as mulch.  Do not claim that a product is "compostable" unless it can safely be converted into compost.
  • "Recyclable" – Make sure that the entire product, other than incidental pieces, is recyclable before making such a claim.  For example, a glass bottle, except for the bottle cap, may be recyclable, so stating such on the bottle is not misleading. 
  • "Made from recycled materials" – Unqualified statements that a product or package is made from recycled materials may be made only if the entire package (excluding incidental parts) is made from recycled materials.  Such claims may only be made for materials that have either been recovered or otherwise diverted from the solid waste stream, either during the manufacturing process (pre-consumer), or after consumer use (post-consumer). 

As with all advertising, environmental marketing claims should be easy to understand and free of deception.  Ensure that all claims are capable of being substantiated if challenged, and if a particular statement is vague, add language to clear up any confusion. 

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