Greenwashing, the concept of self-promotion through misrepresenting the greenness of one’s own product, has been well documented (see, e.g., here and here).
This ploy is designed to take advantage of green consumers, captivating their attention by falsely promoting how a company’s product might have been made or how it can be disposed of, including false or exaggerated claims of the “greenness” of the production process or the product’s recyclability.
There are protections already in place that are designed to punish and deter such practice. However, greenwashing might be just half of the problem. In recent years, a newer, equally disturbing trend has emerged in the green marketplace. This unfortunate trend has been dubbed “reverse greenwashing.”
Much like greenwashing, reverse greenwashing is a process of misrepresenting or misshaping facts to promote sales. However, unlike greenwashing, reverse greenwashing is the process of misrepresenting facts relating to someone else’s products – downplaying or attacking the “greenness” of that other product in an effort to boost the credibility and sales of one’s own product.
There are several severe consequences to allowing rampant reverse greenwashing to occur. Most notably, there is a potential massive evasion of consumption by the victim company’s target market, the green consumers, which could seemingly cripple that company’s bottom line.
Much like greenwashing, rampant, unchecked reverse greenwashing could reward a company for promoting its product in all the wrong ways, resulting in a harming of those consumers who were duped into purchasing one product at the expense of another’s.
Lastly, the environment could be harmed by these reverse greenwashing strategies, as consumers could potentially be avoiding the purchase of actual green and environmentally safe products and instead result in the purchase of products that might be less green than originally thought.
These are just some of the potential ill effects of greenwashing – which begs the question, how can we protect consumers and the environment from reverse green washing?
The Federal Trade Commission, an independent agency of the U.S. government responsible for consumer protection introduced the “Green Guides” in 1992. These Green Guides were created to ensure fair practice methods, requiring marketers of green products to substantiate the claims regarding their products, in effect protecting consumers from the ill effects of green washing. Multiple revisions have been made to these Green Guides, most recently in October of 2012.
However, the question remains, do the Green Guides apply in the context of reverse greenwashing? Due to the suddenness of the trend and lack of case law involving issues of reverse greenwashing, this question has yet to be definitively answered.
The most recent and most publicized case involving claims of reverse greenwashing was that of Hilex Company v. ChicoEco, in which ChicoEco, maker of the popular ChicoBag, was accused of misrepresentating claims regarding the environmental impact of single use plastic bags in order to boost their own sales.
However, this case settled just months after the filing of the complaint, never resolving the issue of whether these Green Guides actually apply in the context of reverse green washing.
Due to the recency of this trend, there has not been much discussion on the topic of protecting potential victims of reverse green washing. The Guides were originally designed to buck the trend of greenwashing.
Although the Green Guides have not specifically addressed reverse greenwashing, there is some language in the guides and later revisions that might lead a reasonable person to believe that they could be interpreted to intend to prevent this variation on greenwashing.
More particularly, the General Principles of the 2012 Green Guides are covered in section 260.3 and state that the Guides apply to all environmental marketing claims:
[t]he following general principles apply to all environmental marketing claims…
A reasonable interpretation is that this language is intended to include all or every type of environmental claim, not just greenwashing, but can extend to the context of reverse greenwashing as well. Without further reading of the Guides, a simple conclusion can be made, which is that these guides must have meant to address reverse greenwashing. After all, what language is more inclusive than the word all?
Unlike the previous versions of the Guides published in 1992, 1996, and 1998, the 2012 Guides include specific examples of the types of claims that are being discussed under the headings. The 2012 guides are substantially more in depth than the previous editions, with the newest revisions being six times larger than the previous revision made in 1998.
Most relevant to this discussion is Section 260.3(d), which addresses General Principles and Comparative Claims. This section was not included in the previous versions of the guides.
The language of this section states:
comparative environmental marketing claim should be clear to avoid consumer confusion about the comparison. Marketers should have substantiation for the comparison. (emphasis added).
The Guides also provide several examples of the types of claims these cover. Example 3 under 260.3(d) states as follows:
An advertiser claims that its packaging creates “less waste than the leading national brand.” The advertiser implemented the source reduction several years ago and supported the claim by calculating the relative solid waste contributions of the two packages. The advertiser should have substantiation that the comparison remains accurate. (emphasis added).
Is this the Federal Trade Commission’s attempt at addressing the issue of reverse greenwashing? Or is “less than the leading national brand” too generic of an example?
The Hilex complaint addresses multiple specific claims made by ChicoBag regarding the adverse environmental effects of Hilex’s plastic bags. Hilex, however, brought suit in 2011 – a year before these Guides were officially published. Their only basis of contention that the Green Guides address reverse greenwashing could be under the 1998 Guides’ 260.3’s General Provisions.
Per Roscoe B. Starek, III, past Commissioner of the FTC:
“…comparative claims should be clear so that consumers know whether the comparison is to a previous version of the advertiser’s product or to a competitor’s product.”
Is this the Federal Trade Commission’s attempt at addressing reverse greenwashing? It is very difficult to tell, as this statement and the Green Guides’ 2010 proposed revisions came out prior to the Hilex case. Therefore, they were likely speaking more in generalities rather than addressing a specific trend of reverse greenwashing.
Although the FTC seemingly tailored these guides to avoid trends of greenwashing in the 1990’s, the numerous revisions over the years show the FTC’s growing concern about consumer protection. Although the language of the guides make it clear that the Guides should apply in the context of reverse greenwashing, we must patiently await a Court decision that suggests that they, in fact, do apply.
In any event, the Federal Trade Commission should revise the Green Guides to specifically address reverse greenwashing, as it has always been the intent of the Federal Trade Commission to address any and all issues arising in the green advertising context to make the Green Guides as comprehensive and as clear as possible.
*Brandon Simon is currently in his third and final year at Thomas Jefferson School of Law and is a senior law clerk at The Simon Law Group, LLP a practice dedicated solely to personal injury. He received his undergraduate degree in Business Administration in 2009 from George Washington University.
This is the second of three posts highlighting work by students who took my seminar class - Green Technology, Climate Change, and Intellectual Property Law – this semester at Thomas Jefferson School of Law. – Ed.
