The Federal Trade Commission’s Green Guides provide guidance on how to make
environmental marketing claims that are truthful and not
misleading. The Green Guides explain how to make claims like
“recyclable” and “made with renewable energy,”
and they also caution against making general environmental benefit
claims, such as “eco-friendly.”
The Green Guides were last revised in 2012, so they are a little
behind-the-times on a number of key claims — such as
“sustainable” and “circular” — that
advertisers commonly use today to market the environmental benefits
of their products. At the end of last year, however, the FTC announced that it planned to launch a review
of the Green Guides in 2022. So, in the next year or so, we should
expect to see some new guidance from the Commission about how it
currently views green claims, which will hopefully include guidance
on some of the newer types of claims that marketers are using right
now.
In the meantime, there’s lots of other activity in the green
marketing space, which may give us some clues as to how the FTC may
address these issues when it turns to them. For example, the
International Chamber of Commerce recently launched its updated Framework for Responsible Environmental Marketing
Communications, which provides useful guidance on some newer
claims. BBB National Programs’ National Advertising Division,
in its decisions, is also wrestling with some of
these emerging claims as well. Some states, such as California, are
passing new laws on environmental marketing. In addition,
the FTC has sent warning letters cautioning marketers about
making claims like “sustainable” and other claims. And
there’s no shortage of other regulatory actions and lawsuits challenges all different types of
green claims.
One of the areas that we’re watching closely is how courts
and self-regulation are evaluating sustainability claims — since
“sustainable” claims are widely used by marketers, but
aren’t addressed in the Green Guides. When the Green Guides
were released more than a decade ago, the FTC said that it
didn’t have sufficient evidence about the meaning of the claim
to provide guidance about how to use it.
Recently, in a false advertising lawsuit against ALDI, the
supermarket chain argued that its claim that its salmon was
“sustainable” was puffery. The court thought that
argument was pretty fishy, however, saying that ALDI claimed its
product was “sustainable” in order to “connect its
product to at least some environmental benefit. As a result, a
reasonable inference can be made that ALDI’s label suggests, at
a minimum, that its product is made in such a way that minimizes
negative impact to the environment, which can be actionable as
something beyond puffery.”
Recently, a federal court in Massachusetts decided another case
which provides a little bit more guidance about what
“sustainability” claims may communicate to consumers. In
the lawsuit, some consumers sued Gorton’s — which is
apparently the largest producer of fish sticks in North America —
alleging that the company falsely claimed that its grilled tilapia
product was “sustainably sourced.”
The plaintiffs claimed that this statement was false and
misleading because the tilapia is “industrially farmed using
unsustainable practices that are environmentally destructive and
inhumane.” The plaintiffs point to the fact that some of
Gorton’s tilapia comes from large industrial fish farms in
China, and that Monterey Bay Aquarium Seafood Watch had
specifically warned consumers to avoid tilapia farmed in China due
to sustainability concerns. The plaintiffs alleged that Chinese
fish farms’ use of pond aquaculture — where, apparently,
thousands of fish are crowded into shallow ponds — not only
creates various environmental risks but mistreats the fish.
Gorton’s argued, however, that its farming practices are
sustainable, relying on credible third party certifications to
ensure it was following industry best practices.
On a motion to dismiss, the court allowed the case to continue,
but limited the scope of the plaintiffs’ claims. The court held
that the plaintiffs asserted a plausible claim that the
company’s tilapia was sourced from Chinese fish farms that are
not sustainable due to their alleged environmentally destructive
and inhumane practices. The court also held, however, that the fact
that the fish was sourced from farms — as opposed to the wild —
did not necessarily mean that the fish were not sustainably
sourced. The court wrote, “To the extent plaintiffs are
casting a wider net in arguing that only tilapia raised in the wild
are sustainable, they will come up empty.”
Why is this case significant? One of the concerns about making
“sustainability” claims is that regulators and plaintiffs
may argue that “sustainable” means that the production of
the product has no adverse impact on the environment at all. If
sustainability is understood to mean, “the capability to meet the needs of
the present generation without compromising the ability of future
generations to meet their needs,” how do you claim a product
is “sustainable” if there is some unavoidable negative
impact on the environment? This court, at least, seems open to the
notion that “sustainable” claims may communicate
something more nuanced than that.
Spindel v. Gorton’s, 2022 WL 3648823 (D. Mass.
2022).
Originally Published by Advertising Law Updates
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