The danger of "greenwashed" ads

Two case studies demonstrate the risks of vague or overstated environmental marketing claims

Despite an acknowledged consumer demand for “green” products, even in an economically challenged financial climate, growing customer demand is matched by a deep skepticism about accuracy in advertising. This skepticism seems honestly earned, as numerous watchdog organizations abound with reports of product exaggerations.  

Although “balance” and “accuracy” are not always the bywords of advertising, failure to meaningfully and adequately capture and communicate environmental benefits and impacts in a balanced way can create real regulatory, litigation and public relations hazards ranging from unfair competition or false advertising lawsuits to regulatory enforcement actions and shareholder/investor lawsuits.

The guide is decidedly consumer-centric and is designed to evaluate claims from the perspective of the average consumer—a bias that cuts against broad, open-ended or confusing terminology. The guidelines identify certain “safe harbors” for green advertisers, and highlight areas of almost certain risk. Although the guidelines are not intended to be used as a lever for a “strict liability” like litigation approach, as a practical matter what may originate as an FTC, FDA or even NAD review can quickly morph into full-fledged civil litigation.

To avoid running afoul of FTC guidance on advertising, product sponsors should undertake a two-step inquiry for advertising claims:

Contributing Author

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Ann Marie Mortimer

Ann Marie Mortimer is the managing partner of Hunton & Williams LLP’s California offices. Her practice focuses on complex commercial litigation such as product liability,...

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