Environmentally friendly advertising claims effectively grab the attention of consumers hungry for "green" products and services.  But as you prepare your holiday advertising, there are several things to keep in mind if you are making "green" claims.  False or misleading green advertising claims can result in challenges by consumers, competitors, self-regulatory entities, and government regulators.  Penalties for false advertising can include injunctions, required corrective advertising, refunds to consumers, civil and criminal penalties, and damages.  Advertisers should therefore carefully review green advertising content to ensure that claims are true, not misleading, and substantiated (i.e., supported by sufficient, credible evidence).  Not only can such review reduce legal liability, it can also help prevent the negative image caused by "greenwashing" (i.e., misleading consumers about the environmental benefits of one's practices, products, or services).  Indeed, the negative publicity that might arise from false advertising could well outweigh any hoped-for benefits.

This article highlights some recent Federal Trade Commission ("FTC") activity in this area and provides some practical pointers for reducing the risk associated with green advertising and branding.

The FTC has noticed the "virtual tsunami of environmental marketing" and recently ramped up enforcement against false and misleading green claims.  For example, in August the FTC charged multiple businesses with deceptively labeling and making false, unsubstantiated green claims about their clothing and textile products.  In doing so, the FTC alleged that the companies falsely claimed their rayon clothing was "100% bamboo fiber," and marketed their products under names that support this claim such as "ecoKashmere," "Pure Bamboo," "Bamboo Comfort," and "BambooBaby."  (It is important to understand that brands, logos, slogans, and product names and designs can convey false or misleading advertising claims.)  The FTC also alleged that all the companies falsely claimed their products retained bamboo's antimicrobial properties, and some of the companies misrepresented their products as biodegradable and made using an environmentally friendly process.  Several of the challenged companies have already settled with the FTC, and the settlements bar them from claiming that any textile product is made of bamboo, antimicrobial, or manufactured using an environmentally friendly process unless the claims are true, not misleading, and supported by competent and reliable scientific evidence.  One company was also barred from claiming that its products are biodegradable absent such evidence.

The FTC has provided general principles for making green claims in its "Guides for the Use of Environmental Marketing Claims" ("Guides"), as well as specific guidance on the use of certain terms such as "biodegradable," "recyclable," and "ozone safe," among others.  The FTC is currently working, however, to revise the Guides, which were last updated in 1998, to address current green claims.  Terms such as "sustainable," "renewable," and "carbon neutral" are not addressed in the current Guides.

Some practical tips follow for reducing the risk associated with green advertising claims or, for that matter, other advertising claims:

• Narrowly and specifically describe your practice, product, or service benefit.  (Narrow, focused claims can be easier to substantiate.  On the other hand, vague, open-ended claims can communicate multiple messages and therefore be very difficult (and costly) to substantiate.)
• Carefully analyze all advertising messaging, terms, names, logos, slogans, images, and other content to identify claims that could be reasonably communicated by the material.
• Ensure that any claims are precisely supported by well-documented, sufficient, credible (often competent and reliable scientific) evidence before the claims are published.  Save the evidence in case you are investigated (e.g., by a regulator) or otherwise challenged.
• Follow the Guides and keep watch for the forthcoming revised version.
• Implement an advertising compliance review program.  To the extent possible, seek input from your legal team early in the review process to potentially avoid investing resources in high-risk advertising content.