Are You as Green as You Claim to Be? Compliance with California’s Environmental Marketing Claims Act

The great legal philosopher, Kermit the Frog, once observed “it’s not easy being green.”

He could have added that it may no longer be as easy to claim you are green when you aren’t.  The passage of the California’s Environmental Marketing Claims Act (“EMCA”), for companies manufacturing or distributing products in California, is aimed at those, unlike our friend, Kermit, who are not as green as they might suggest.

Any common observer will note that an in vogue marketing message is to tout a product’s “greenness” as the environment is a key component of many consumers’ buying decisions. As a result, there has been a significant rise in companies’ efforts to “greenwash” or promote the eco-friendliness of their products. True to form, the California Legislature decided to tackle this problem with gusto, by passing the EMCA. The law makes it “unlawful for any person to make any untruthful, deceptive, or misleading environmental marketing claim, whether explicit or implied.” Bus. & Prof. Code § 17580.5.

An “environmental marketing claim” is a defined term and includes any claim contained in the Green Claims Regulations (the “Green Guides”) published by the Federal Trade Commission (“FTC”). Bus. & Prof. Code § 17580.5(a). Under the Green Guides, an environmental marketing claim includes any statement in labeling, advertising, promotional materials and all other forms of marketing, whether asserted directly or by implication, through words, symbols, emblems, logos, depictions, product brand names, or through any other means, including marketing through digital or electronic means, such as the Internet or electronic mail. It also includes any claim about the environmental attributes of a product, package or service in connection with the sale, offering for sale, or marketing of such product, package or service for personal, family or household use, or for commercial, institutional or industrial use. 16 C.F.R. § 260.2(a) (2011). Claims such as: “biodegradable,” “compostable,” “recyclable,” “recycled,” “refillable,” and “ozone safe” are covered in the Green Guides. 16 CFR § 260.1 (2011). Not presently included in the Green Guides, but currently under review by the FTC, are claims such as “eco-friendly,” “sustainable,” and “carbon neutral.”

The Green Guides themselves “are not legislative rules under Section 18 of the FTC Act and therefore are not themselves enforceable regulations, nor do they have the force and effect of law.” ( Id., § 260.2(b).) However, by incorporating the Green Guides into the EMCA, they are enforceable in California. Under the Green Guides, and by extension under California law, “[i]t is deceptive to misrepresent, directly or by implication, that a product, package or service offers a general environmental benefit. . . . [E]very express and material implied claim that the general assertion conveys to reasonable consumers about an objective quality, feature or attribute of a product or service must be substantiated (16 C.F.R. § 260.7(a) (2011)) and “[a]n environmental marketing claim should not be presented in a manner that overstates the environmental attribute or benefit, expressly or by implication.” 16 C.F.R. § 260.6(c).

The Green Guides are composed of general principles on the use of environmental claims, and include examples of what does and does not constitute a deceptive representation. While the examples do not illustrate all possible permissible claims or disclosures, they do provide a “safe harbor” for marketers who want certainty about how to make environmental claims. 16 C.F.R § 260.4. For example, the Green Guides indicate that if a box of aluminum foil is labeled with the claim “recyclable,” without further elaboration, it is deceptive if any part of either the box or the foil, other than minor, incidental compenents, cannot be recycled. Similarly, a package labled “50% more recycled content than before” is technically true if the manufacturer simply increased the recycled content of its package from 2% recycled material to 3% recycled material, but will be considered deceptive because it is likely to convey the false impression that the advertiser increased significantly the use of recycled material.

In enacting the EMCA, and applying the broad language of the Green Guides, the California Legislature explained:

The Legislature finds and declares that it is the public policy of the state that environmental marketing claims, whether explicit or implied, must be substantiated by competent and reliable evidence to prevent deceiving or misleading consumers about the environmental impact of products and packages.

In furtherance of this stated purpose, the EMCA requires that any person making an environmental marketing claim by representing in advertising or on the label or container of a consumer good that the consumer good it manufactures or distributes is not harmful to, or is beneficial to, the natural environment must maintain written information and documentation supporting the validity of the environmental marketing claim. Such written documentation must include:

(1) A statement of the reasons why the person believes the representation to be true;

(2) Any significant adverse environmental impacts directly associated with the production, distribution, use, and disposal of the consumer good;

(3) Any measures that are taken by the person to reduce the environmental impacts directly associated with the production, distribution, and disposal of the consumer good;

(4) Violations of any federal, state, or local permits directly associated with the production or distribution of the consumer good;

(5) Whether or not, if applicable, the consumer good conforms with the uniform standards contained in the Federal Trade Commission Guidelines for Environmental Marketing Claims for the use of the terms “recycled,” “recyclable,” “biodegradable,” “photodegradable,” or “ozone friendly.”
Bus. & Prof. Code § 17580.

The pitfalls of “greenwashing” were recently addressed in Hill v. Roll Intern. Corp., 195 Cal.App.4th 1295 (2011) (“Hill”), a California case brought under the EMCA. In Hill, a consumer of Fiji-brand bottled water asserted that a picture of a green water drop on the label led her to believe that Fiji water was environmentally superior and endorsed by an independent environmental organization, when in fact it was not. Plaintiff asserted violations of the California Unfair Competition Law (Bus. & Prof. Code § 17200, et seq.), False Advertising Law (Bus. & Prof. Code § 17500, et. seq. ) and Consumers Legal Remedies Act (Civil Code § 1750, et. seq.), as well as common law fraud and unjust enrichment, claiming that Fiji was guilty of “greenwashing” its product (i.e., making false or misleading claims of environmental benefits). Even though the Court ultimately concluded that Fiji water did not violate the EMCA because Plaintiff could not establish that the green drop on Fiji water bottles conveyed to a reasonable consumer that the product was endorsed for environmental superiority by a third party organization, the case draws attention to the care that companies must take when branding their products as environmentally friendly and the likelihood of continued and increased litigation in this cutting edge area of the law.

In light of the broad language of the EMCA and the California legislature’s stated intent to prevent manufacturers from deceiving or misleading consumers about the environmental impact of products in a wide variety of contexts, there are significant risks and potential liability for proceeding to market in California with a product claiming environmental friendliness. The bottom line: unless your product is demonstrably green (and supporting records are maintained), environmental marketing claims should be avoided in California.

Special thanks to Lynnda McGlinn of Dorsey & Whitney who authored this blog entry.   

Author: Kent Schmidt

As a Partner in the Southern California office, Kent practices in virtually all types of general business litigation, with an emphasis in unfair business practices, First Amendment litigation, defamation, trade secret litigation, class actions, product liability, securities litigation and enforcement, commercial disputes, employment law, intellectual property and Prop 65 (environmental) claims. He is an aggressive and creative courtroom advocate, representing both plaintiffs and defendants. Having spent his entire legal career at Dorsey, Kent is adept at finding the right lawyers in the firm to collaborate with in order to provide the best representation for his clients.

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