essence, the FTC deems valid any reasonable meaning a consumer might give to advertising. The way toavoid conusion, then, is to be as specic as possible and making claims regarding a product’s environ-mental impact. Substantiation is best provided with competent and reliable scientic evidence in the ormo proessional analysis or research into the environmental impact o a product. The duty to substantiate allreasonable interpretations o environmental claims is made more onerous by the act that the burden is onthe company making the claim to prove that the claim is not deceptive. Proactive use o the Green Guidesto avoid FTC involvement is strongly recommended.
California’s Latent Environmental Marketing Law
Caliornia is among eight states that have enacted laws regulating the use o environmental terms. Calior-nia’s law states that compliance with the FTC’s Green Guides provides a sae harbor or marketers in Cali-ornia, with one exception: Any company that advertises its products using broad claims o environmentalriendliness such as “ecologically sound,” “environmentally sae,” “eco-riendly” or any similar term mustprovide written documentation supporting such claims to any member o the public upon request. Thisdocumentation must, in addition to speciying compliance with the Green Guides were applicable, showthe ollowing: (1) the reasons why the company believes the representation to be true; (2) any signicantadverse environmental impacts directly associated with the production, distribution, use, and disposal othe product; (3) any measures that are taken to reduce the environmental impact directly associated withthe production, distribution, and disposal o the product; and (4) violations o any Federal, State, or localpermits directly associated with the production or distribution o the product. A violation o the statute is amisdemeanor punishable by jail and/or a ne up to $2500. The Caliornia Department o Justice has yet to le a greenwashing complaint under this statute, but at-torneys in its Consumer Protection Department indicate that it is an area o concern or the oce. Becauseinvestigations are kept condential until the Caliornia DOJ begins ling complaints, it is hard to predict whether or when the oce may begin initiating its own prosecutions. The oce has been overwhelmed withmortgage-raud investigations over the past several years, but these may begin subsiding as oreclosuresrun their course. In a state as environmentally conscious as Caliornia, is a sae bet that the Caliornia DOJ will begin tackling greenwashing in the near uture.
Consumers Attack Greenwashing under California’s Unfair Competition Law
Individual consumers, on the other hand, have had several recent successes pursuing greenwashing-typeclaims under Caliornia’s Unair Competition Law. This law allows a consumer who has lost money in relianceon a deceptive-advertising/labeling claim to bring a complaint against the company directly. This year, aconsumer won a $100,000 settlement against Honda under this law or misrepresenting the gas mileage othe Honda Civic Hybrid In addition, there are three pending the class-action lawsuits under this law that havesurvived motions to dismiss. The suits allege that: the maker o Windex put a “Green list” logo on the labelto deceive consumers into believing the product was certied as environmentally-riendly by a third party;
2010 HANSON BRIDGETT BUSINESS