Evergreen focuses on green marketing at the national advertising division – media, telecommunications, IT, entertainment

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The National Advertising Division’s (NAD) role in evaluating green marketing is very important because the FTC’s Green Guides (which are used to guide both legal advice and business decisions) have been updated to last seen in 2012 and are being revised this year. The new Green Guides are expected to focus on some of the most current and consumer-relevant environmental claims that the current Green Guides do not specifically address.

Q: How have green demands (and associated NAD challenges) evolved over the years?

A: As a self-regulatory decision-making body, the NAD will look to the FTC for guidance when reviewing claims of green advertising and evaluating the substantiation of those claims. Although the FTC’s Green Guides and FTC Actions provide specific guidance for certain types of claims (e.g., environmentally friendly) and espouse general principles to follow (e.g., no claims too broad), the NAD has wide latitude in interpreting the law and providing its own perspective on what constitutes legally compliant environmental advertising. For example, we successfully defended clients in two NAD challenges, one involving the use of the term “eco” in a product name, and the other over established guidelines for what qualifies as “green” computer. These NAD decisions established de facto standards and provided guidance to the industry.

Q: What claims are becoming increasingly popular, but mostly based on the NAD precedent?

A: “Sustainability” claims – arguably among the most popular types of green marketing claims today – are primarily informed by NAD decisions. The Green Guides specifically address claims such as “green” and “eco-friendly”, but do not specifically refer to “sustainability” – largely because sustainability marketing was not as widespread as it used to be. ten years ago. But the decisions of the NAD help fill this gap. In
Beech-Nut Nutrition Company (Beech-Nut baby food), NAD clarified that “sustainability” – like “green” and “environmentally friendly” – is a general claim of environmental benefit. When used without qualification, these claims are misleading because they can convey a wide range of reasonable, but unsubstantiated meanings.

The NAD has continued to issue decisions illustrating how to qualify these claims. For example, in Georgia-Pacific Consumer Products LP (Quilted Northern Ultra Soft & Strong Bathroom Tissue), the NAD found that certain “durability” claims were sufficiently qualified when consumers were unlikely to miss or ignore the links of claims with specifically described environmental factors. benefits (eg tree planting and energy efficiency).

Carbon neutral claims have also become increasingly popular. Although the Green Guides do not explicitly address carbon neutrality, they offer general principles and specific guidance on carbon offsets that help inform the handling of carbon neutrality claims. Applying these guidelines, NAD has found in LEI Electronics, Inc. (Eco Alkalines Batteries) that “carbon neutral” claims are not sufficiently substantiated when the advertiser does not provide material information (when carbon reductions are are occurring or will occur) and provides an unreliable life cycle analysis.

Q: Why has there been an increase in challenges to green claims at NAD?

A: Marketers are focusing more on environmental claims and consumers are more interested in them due to the change of administration in Washington, the constant barrage of environmental disasters and the growing acceptance that climate change is a danger. real and current. As such, regulators – governmental and self-regulatory – and class action lawyers have particularly focused on environmental claims.

Q: What trends are emerging in recent NAD cases that highlight the technical and practical risks of green marketing?

A: There is ongoing attention to potentially overbroad claims. Advertisers should ensure that general claims are matched with specific, justifiable benefits. For example, earlier this year in PurposeBuilt Brands (Green Gobbler Drain Clog Dissolver), NAD heard a challenge regarding, in part, the “POWER meets Green” claim for a drain cleaner. The NAD recommended that this claim be dropped as it reasonably conveys the unsubstantiated message that the drain opener product achieves the unlikely combination of being both powerful enough to unclog drains, yet overall environmentally friendly. . On the other hand, the NAD recently found, in Safe Catch, Inc. (Pouched and Canned Tuna), that the “100% Sustainably Caught Wild Tuna” claim was sufficiently substantiated, largely because the claim was qualified and based on reputable methods that have been clearly communicated to consumers.

Recently, there has also been a focus on aspirational claims (such as “aim to”, “commit to” and “strive to”); it is not necessarily because a claim is ambitious that it is inflated. In Butterball, LLC (Butterball Turkey Products), a recent case involving sustainable marketing, the NAD found that the assertion that a company “acknowledges” its “responsibility” to “preserve the planet” required proof that the company had taken concrete steps to meet the stated goal.

Q: The NAD has also challenged environmental marketing by independently monitoring the market. What are these cases about?

A: When deciding whether to open a surveillance case, the NAD considers, among other things, whether it would fill a gap in the regulatory efforts of the FTC and state AGs, and/or whether the advertisement addresses an issue of interest. new or emerging. Arguably, modern green marketing meets both criteria, and it is expected that the NAD will continue to monitor the market, particularly if the FTC releases revised green guides.

The NAD recently challenged several environmental benefit claims in Georgia-Pacific Consumer Products LP (Quilted Northern Ultra Soft & Strong Bathroom Tissue) – including sustainability claims (“Sustainably Made Premium Comfort”) that consumers may not include limited to specific benefits described. In Everlane, Inc. (Everlane ReNew Clothing), the NAD filed a supervisory action against a fashion brand, recommending changes to environmental benefit claims to ensure there was no deception.

Q: What can companies wishing to support environmental efforts do to manage legal risks?

A: Just as green technologies are rapidly evolving, this area continues to grow; emerging industry standards and updated regulatory guidelines may soon be released. There will likely be other law enforcement activity (especially at the NAD) and class action attorneys are looking. Businesses should stay abreast of all NAD, FTC, and state developments in this area to ensure that the decisions they make are well-informed and that advertising complies with the law.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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