“As a result, companies are left to guess whether they are making appropriate claims and whether they have sufficient substantiation to justify the claims associated with their products. This type of environment opens companies up to potential claims - including class action lawsuits - that a reasonable consumer is deceived by the marketing claims.”
Diesch adds her belief that this results in ‘unnecessary divergence with the industry, which can result in the interpretation of ‘natural’ being questionable, especially as not even the FDA has a definition for the term.
FTC Green Guides are helpful, but don't prevent lawsuits
“Although the FTC Green Guides provide helpful advice and guidance to companies, compliance with the guides does not prevent lawsuits brought under a state’s consumer protection or unfair competition laws.”
Going green can also be seen as a prickly issue. Make the wrong type of claim, or use ambiguous or misleading language and statements, and it can do your company more harm than good.
Diesch believe that for many the problem comes when trying to quantify where the cut-off point for using green claims in marketing lies.
Getting the claim right...
“Claims must be considered in context and in association with all other claims and facts associated with a particular brand. Just about every article, blog, or discussion on the subject of greenwashing says it is an issue, and I would tend to agree.“
And the best solution to this dilemma? The lawyer believes that it all boils down to being honest.
“I view it to be the responsibility of each person and each company to decide how ‘green’ they will be and then to be honest about it to themselves and their consumers about those efforts and the results.”
Get the facts right and get a lawyer
Diesch will be discussing the topic of green marketing at the forthcoming Sustainable Cosmetics Summit, to be held in NYC next week, where she will also be discussing ways that companies can avoid the pitfalls of green marketing.
"The best advice I can provide is for companies to carefully review their marketing claims including those on product labels, associated marketing materials, and websites,” Diesch explains.
“While marketing and regulatory compliance personnel may conduct the initial audit, it is wise to have an attorney familiar in these areas review the claims, along with the information the company believes support the claims.”