This series, “It isn’t easy being green,” provides a brief overview of the major legal issues associated with “green” marketing claims and offer a practical framework for analyzing and reducing risk. This is part three of three. Read parts one and two.
Adequate and meaningful environmental or “green” communication presupposes a solid knowledge base internally, coupled with up-to-date knowledge of the external science supporting product attribute substantiation. Navigating the evolving risks associated with green advertising requires companies to stay current and informed and to assess existing knowledge and disclosure practices internally and externally. Green communications—wherever and however they appear—should be centrally reviewed for accuracy. As part of this process, companies should conduct a thorough audit and risk management of the accuracy of what is included in and omitted from all public statements (including advertising) related to climate change, sustainability and green attributes. Consistency is key. Companies should ensure consistency between risk and opportunity in Securities and Exchange Commission filings and other public disclosures, including sustainability and climate change reports and marketing materials. To achieve these goals, here are a few “do’s” to consider:
One recent case illustrates the point. In Fraker v. Bayer Corp. the court rejected the plaintiff’s attempt to ground a false advertising claim on the prior substantiation doctrine. The defendant, Bayer, advertised that its One-A-Day supplements would increase metabolism, help prevent weight gain associated with age-related metabolism decline and help users control their weight by enhancing their metabolism. Upon finding that the claims were not substantiated by reliable scientific evidence, the Federal Trade Commission (FTC) imposed a civil fine and required Bayer to sign a cease and desist agreement.
A class action followed and the plaintiff lifted its factual allegations directly from the language of the FTC complaint. Bayer moved to strike a number of these allegations on the grounds that merely lifting the factual allegations from the FTC complaint was in violation of the attorney’s duty to assure that the factual contentions have evidentiary support after a reasonable opportunity for further investigation of discovery. The court reasoned that a regulation under the Federal Tort Claims Act does not create a private right of action, and that a plaintiff cannot style his or her false advertising claim as one for unsubstantiated advertising. Plaintiffs still bear the burden of proof that the claims are false or misleading.