8 Legal Tips for Green Ads
When it comes to how your products support the health of the planet, you want to create a social media buzz that stops your target market in their tracks. Of course you want to capitalize on "going green." Who doesn't?
Treading into these waters calls for caution, especially now. The FTC's Green Guides are the go-to resource for environmental marketing. In some states they have the force of law. As they were revised less than a year ago (for the first time since 1998), they have not been widely tested or interpreted.
Your competitors might challenge your ads before the National Advertising Division (NAD), which reviews truth and accuracy in national advertising, or NAD could bring a case against you on its own.
Here are eight tips to avoid green ads that make creative swoon....but make legal groan.
1. Remember the Golden Rule!
- The truth and accuracy of your ad is judged by how the "reasonable consumer" perceives it.
- When a specific term is regulated, the reasonable consumer is usually still the underlying basis for the applicable standard.
- When a term is not regulated, the reasonable consumer is in charge.
2. Be Specific
- Simply claiming your product is "eco-friendly" or "green" is over. General is out.
- General claims are too vague to be meaningful to the reasonable consumer, so they're likely deceptive.
- Better to be specific about your product's environmentally friendly attributes.
3. Don't Be Coy
- Trying to work around Tip Two can get you into the same measure of trouble.
- A pic of your product surrounded by flowers, birds and honeybees (or similar scenes of environmental bliss) with the simple claim "Make a Change" is still no good.
- You don't get points for being oblique; implied claims are equally scrutinized.
- Don't overstate. Technically true claims can still be misleading. If the recycled content of your product has "jumped" from 2 percent to 3 percent, don't say, "50% more recycled content than before!" The reasonable consumer would be decidedly unimpressed.
- Beware of comparing your products to competitor's products, even if you don't name the competitor and/or just imply the comparison. Comparisons are possible but need a great deal of care to avoid deceiving our omnipresent (but not omniscient) reasonable consumer.
- You want to shout out that your new turtle litter boxes are green! They help manage that pesky waste in a way that's better for the planet and are recyclable to boot!
- Just make sure you qualify that general term "green," which by itself would be a no-no, with clear and prominent language to clarify that your "green" claim refers only to the environmental benefits—from the product being recyclable (see Tip Six) and being the best way to manage turtle waste. (Whether the reasonable consumer would ever buy this product is questionable, but beyond the scope of this article.)
- If you're advertising online, use qualifications the right way with FTC's ".com Disclosures" guidance, updated in March 2013 for the first time since 2000.
5. Know What the Green Guides Cover
- Non-Toxic and "Free Of" claims; Biodegradable, Compostable, Recyclable, and Refillable claims; Made with renewable energy, renewable materials or recycled content claims; VOC-free, Ozone-safe or ozone-friendly, and Carbon offset claims; and using certifications and seals of approval.
- Don't memorize this list. Just know what it includes so you can review it and always review it. The regulation of these terms is not as straightforward as it may seem when actually applied to your dream marketing campaign. Get green marketing legal advice.
- For example, to claim a product (or its packaging) is "recyclable," recycling facilities should be available to at least 60 percent of consumers or communities where the item is sold. If not, apply Tip Four with a qualification such as, "This package may not be recyclable in your area."
6. Support Your Claims With Reliable, Sound Science
- List all express and implied claims.
- For each claim, list all reasonable interpretations of the claim.
- Support each reasonable interpretation with a sufficient quantity and quality of evidence, based on standards generally accepted in relevant scientific fields.
7. Know the Endorsement Rules
- The FTC Endorsement Guides were also recently updated in December 2012 for the first time since 1980.
- Who is endorsing the product? A scientist, with our without relevant expertise? A famous pop singer? A blogger? Someone on social media?
- Is the endorser being paid? Depending on who the endorser is, you may have to disclose it so as not to tick off the reasonable consumer.
- Is the endorser's experience with your product the same as your customers'? If not see, Tip Four.
8. Consider Steering Clear of "All-Natural" Claims for Now
- "All-natural" claims are attracting lawsuits all over the country.
- Two cases settled recently for a combined total of over twelve million dollars where the products contained synthetic ingredients and GMOs.
There are of course numerous other issues with environmental-related claims, and we can't cover them all in this article. These examples are intended as general information and not specific legal advice. Products and situations can be unique and we encourage marketing professionals to speak with an attorney to discuss their individual situations.
Brian Dunkiel and Rebecca Boucher are attorneys at the Burlington, Vt.-based law firm Dunkiel, Saunders, Elliott, Raubvogel & Hand. Reach them at email@example.com and firstname.lastname@example.org.