“Green Marketing,” “Green Procurement,” “Environmentally Preferable,” and “Ecolabels”: The popularity of these terms reflects the public’s growing environmental consciousness and its concomitant demand for “environmentally preferable” or “green” products and services. Companies and governments are responding to this demand. Green marketing claims and green procurement programs abound. However, there are important regulations and legal standards defining acceptable marketing behavior, and stakeholder scrutiny of marketing claims is on the rise. Companies that comply may reap significant benefits while avoiding reputational harm and potentially costly legal proceedings. Never before has it been as critical as it is today to understand and comply with the applicable legal requirements.
Marketing claims are the subject of laws, regulations, guidance, and voluntary standards in the United States and abroad. In the United States, the Federal Trade Commission (FTC) is the primary federal agency regulating green marketing claims. The FTC enforces the Federal Trade Commission Act (FTC Act) and has published the “Guides for the Use of Environmental Marketing Claims” to help companies comply with the Act’s requirements. The FTC’s guidance has been incorporated into, or has the potential to influence the interpretation of, state false advertising laws that also may be used to regulate marketing claims. In addition, industry self-regulatory organizations, standardization bodies such as the International Organization for Standardization (ISO), and third-party certification organizations such as Green Seal and the USGBC, are actively issuing guidance and may be offering other services, such as dispute resolution or the licensing of proprietary “eco-labels,” that can help define and ensure acceptable marketing behavior.
With the proliferation of marketing claims and the increased potential for public confusion, the amount of regulatory and enforcement activity will rise. The FTC recently updated its guidance and initiated a number of high-profile enforcement actions. Governments in states and other countries may pursue similar actions to protect consumers. Moreover, as general awareness of the standards and laws increases, companies may see their customers and competitors scrutinizing products and publicly challenging or reporting questionable marketing practices, or even bringing private legal action for damages. Therefore, premarket review of claims has become a critical step in the product development process, one that is often best informed by a multidisciplinary team of lawyers, product stewards, marketing specialists, product development specialists, and others.
The assistance of competent legal counsel will help you achieve compliance – minimizing the risk of a potentially expensive and embarrassing enforcement action or private legal challenge -as well as identify opportunities to demonstrate industry leadership and enhance marketability. Verdant provides a number of services in support of these goals, such as:
- Reviewing advertising and other marketing materials in advance of their publication.
- Evaluating the use of a third-party or governmental certifications, or self-verifications, of environmentally preferable products and services (e.g., Green Seal, EPA’s DfE, or EPEAT).
- Establishing internal policies and practices to minimize the risk of noncompliance or other liability.
- Providing training to in-house counsel, marketing and advertising personnel.
- Evaluating and challenging a competitor’s claims.
- Defending against government enforcement and private party challenges.
- Overseeing internal compliance audits.
- Performing supply chain due diligence.
For more information on the Firm’s capabilities, please send an e.mail to email@example.com, or call +1.202.828.1233.