University of Miami Law Review Volume 64 Number 4 Volume 64 Number 4 (July 2010) Article 8 Eleventh Circuit Issue 7-1-2010 The Greenwashing Deluge: Who Will Rise Above The Waters Of Deceptive Advertising? Elizabeth K. Coppolecchia Follow this and additional works at: https://repository.edu/umlr Part of the Law Commons Recommended Citation Elizabeth K. Coppolecchia, The Greenwashing Deluge: Who Will Rise Above The Waters Of Deceptive Advertising?, 64 U. 1353 (2010) Available at: https://repository.edu/umlr/vol64/iss4/8 This Note is brought to you for free and open access by the Journals at University of Miami School of Law Institutional Repository.
It has been accepted for inclusion in University of Miami Law Review by an authorized editor of University of Miami School of Law Institutional Repository. For more information, please contact library@law. The Greenwashing Deluge: Who Will Rise Above the Waters of Deceptive Advertising? ELIZABETH K. COPPOLECCHIAt We grew up founding our dreams on the infinite promise of American advertising.
I still believe that one can learn to play the piano by mail and that mud will give you a perfect complexion. TRENDS IN GREEN ADVERTISING LEAD TO MOUNTING CONCERNS. The Collision Between Green Marketing and Greenwashing. Greenwashing's Threat to Eco-friendly Consumerism.
THE RISE AND FALL OF GREENWASHING. Redefining "Greenwashing"-Evolution of the Term. The First "Green" Wave Hits: 1990-1999. A Decade of Dormancy for the FTC: 2000-2009.
Claims Under the Federal Trade Commission Act. The Green Guides and Their Connection to the FTC Act. PRINCIPLES GUIDING ENVIRONMENTAL-MARKETING CLAIMS. CATEGORIES OF ENVIRONMENTAL-MARKETING CLAIMS.
Differentiating Greenwash from Traditional Deceptive Marketing. Potential Consequences of the Upcoming Green Guides Revisions. FEDERAL COURT INVOLVEMENT VIA THE LANHAM ACT. Concerns over General Application of the Lanham Act.
ELEMENTS TO A SECTION 3(A) CAUSE OF ACTION. Concerns over Standing: A Flood of Consumer Claims. Concerns over Judicial Involvement. A LACK OF GUIDANCE: CONCERNS OVER A PATCHWORK SYSTEM.
THE NEED FOR REGULATIONS: DISAGREEMENTS. INTRODUCTION When asked to discuss their thoughts on the rising concern over "greenwashing," most ordinary people would casually respond with a blank stare. Although businesses have engaged in the practice of green- washing for the past two decades-causing legislatures, courts, and con- sumer organizations to concern themselves with this pervading issue- t Executive Editor, University of Miami Law Review; J. Candidate 2010, University of Miami School of Law.
2007, University of Miami. I initially wish to thank my mom for her endless support throughout my legal education. I would also like to thank Freddy Funes and Tad Hethcoat for their wonderful editing expertise, and Professor Marc Fajer for his thorough advising. 1353 1354 UNIVERSITY OF MIAMI LAW REVIEW [Vol.
64:1353 the general public still remains somewhat unmindful of the concept and unfamiliar with the term. Some scholars have defined greenwashing as "the advertising of a product as 'environmentally friendly' when some aspect of the product (or its distribution) has, in fact, deleterious effects on the environment."' Others have more broadly defined greenwashing as a specific variant of "whitewashing" in which parties "attempt to cover up or excuse wrongdoing through false statements or the biased presentation of data."' At a basic level, corporations greenwash consum- ers by making "subtle use of specific colors, images, typefaces," and a seemingly genuine storyline-about how nature lovers should purchase these products to stay true to their eco-conscious selves-in order to market products.3 The recent surge in environmental marketing 4 alongside significant consumer and governmental concerns over deceptive advertising war- rant extensive discussion of the various means by which the legal com- munity may address potential greenwashing claims. This article explores varying approaches to the issue of greenwashing claims and argues that the Federal Trade Commission's upcoming release of its revised Guides for the Use of Environmental Marketing Claims, or "Green Guides," in conjunction with the Federal Lanham Act is likely to heighten enforce- ment of greenwashing actions in the coming years. This article further argues that should the Federal Trade Commission ("FTC") fail to actively enforce greenwashing claims subsequent to releasing its revised Green Guides, federal courts will unabashedly step in to fill the enforce- ment gap.
Part II provides context as to current concerns over environmental 1. David Hoch & Robert Franz, Eco-Porn Versus the Constitution: Commercial Speech and the Regulation of Environmental Advertising, 58 ALB. Robert Lamb, How Greenwashing Works, HOWSTUFFWORKS. TRADE COMM'N, THE FTC IN 2010: FED.
TRADE COMM'N ANNUAL REPORT 51 (2010), availableat http://www.gov/os/2010/04/2010ChairmansReport.pdf [hereinafter FTC IN 2010] (explaining that "[c]onsumers are increasingly making purchasing decisions based on the environmental impact of products. TRADE COMM'N, THE FTC IN 2009: FED. TRADE COMM'N ANNUAL REPORT 76 (2009), available at http://www.gov/os/2009/03/2009ftcrptpv.pdf [hereinafter FTC IN 2009] (citing a "virtual tsunami of green marketing"); Lydia Parnes, Dir., Bureau of Consumer Prot. Trade Comm'n, Remarks at the 56th Annual Antitrust Spring Meeting 7-8 (Mar.
28, 2008), available at http://www.gov/speeches/pames/080328aba., Bureau of Consumer Prot., Remarks Before Magazine Publishers of Am. 25, 2010), available at http://www.gov/speeches/vladeck/100225mpaspeech.pdf [hereinafter Vlaldeck Remarks 2010] ("In recent years, environmental marketing has proliferated. Parlow, Greenwashed: Developers, Environmental Consciousness,and the Case of Playa Vista, 35 B. 20101 THE GREENWASHING DELUGE 1355 marketing claims in categorical form.
Part III emphasizes the cyclical nature of greenwashing claims, providing a chronology of FTC and state action toward greenwashing throughout the past two decades. Part IV examines the FTC's role as the primary enforcement agency for green- washing claims, describing the intersection of the Green Guides to the traditional analysis of deceptive marketing practices, arguing that because deceptive environmental-marketing claims differ significantly from traditional deceptive claims, regulatory approaches should account for such distinctions. Part V addresses a scenario in which the FTC fails to actively enforce greenwashing claims, arguing that the federal courts can and will likely play a role in greenwashing disputes by virtue of the Federal Lanham Act. Part VI questions the Supreme Court's failure to intervene with regards to environmental marketing claims, focusing on concerns over "patchwork" regulatory efforts.
Part VII discusses current and potential disagreements arising from the need for regulations concerning environmental marketing. TRENDS IN GREEN ADVERTISING LEAD TO MOUNTING CONCERNS With the organic food industry reaping an overwhelming $25 bil- lion per year,5 it is no wonder that greater numbers of businesses have decided to market their products as "green. ' This article does not aim to disparage sincere efforts at promoting a more eco-friendly consumer culture, rather, this article applauds such advances and proceeds with the purpose of narrowly examining an alarmingly understated, though per- vasive, challenge to eco-friendly consumerism-greenwashing. Greenwashing does not occur in a vacuum.
Instead, societal trends greatly affect greenwashing as environmental marketing peaks during certain periods, mirroring the economy and perceived public opinion respecting environmental issues. 7 Consumers who purchase "green" products may be completely unaware that their desire to purchase such 5. Kim Severson, Be It Ever So Homespun, There's Nothing Like Spin, N. See FTC IN2009, supra note 4, at 76; Parres Remarks 2008, supra note 4, at 8; Marianne M.
Jennings & John Entine, Business With a Soul: A Reexamination of What Counts in Business Ethics, 20 HAMLINE J. TRADE COMM'N, THE FTC IN 2008: A FORCE FOR CONSUMERS AND COMPETITION 67 (2008), available at http:/Iwww.gov/os/2008/O3/ChairmansReport2OO8.pdf [hereinafter FTC IN 2008] (promising a "continu[ing] public dialogue on green marketing claims as a response to "consumers becom[ing] more conscious of the impact consumption has on the. environment") with FED. TRADE COMM'N, FED.
TRADE COMM'N 1994 ANNUAL REPORT 17 (1994), available at http://www.gov/os/annualreports/ar1994.pdf [hereinafter FTC IN 1994] ("Today's consumers are increasingly concerned with .the environmental implications of packaging and other product attributes. 1356 UNIVERSITY OF MIAMI LAW REVIEW [Vol. 64:1353 products is heavily influenced by a need to join the "group" of the moment, which currently happens to relate to socially conscious con- sumers, 8 perhaps because "[g]uilt over the environment is at a historic high." 9 Still, the very acknowledgment of greenwashing as a problem can only arise in a context of flourishing social conscientiousness. Consum- ers and businesses alike are leaping forward into an era of unprece- dented environmental awareness-and for that we should count ourselves fortunate to have come so far in the past fifty years.
10 But we should temper any such celebration by the notion that too much of a good thing can at times lead to unforeseen and unwanted effects. The Collision Between Green Marketing and Greenwashing Businesses are particularly alert to the potential economic benefits that will likely accrue to them as a result of their entrance into the envi- ronmental marketing arena.'' The AARP recently conducted a study, determining that "there are 40 million 'green boomers' in the United States today," meaning that over half of the nation's "baby boomers" currently consider themselves to be "environmentally conscious con- sumers."12 Businesses undoubtedly feel the pressure to fulfill their cus- tomers' expectations and therefore have responded to consumers' demands for "green" products." It is not simply that businesses are engaging in a greater amount of green marketing as of late, but rather that a greater amount of businesses 8. See Vladeck remarks, supra note 4, at 2 (explaining that businesses continue to environmentally market their products in response to "heightened consumer concern about the environmental impact of using certain products"); Severson, supra note 5. Jesse Ellison, Who Is the Greenest of Them All?, NEWSWEEK INT'L, July 14, 2008, at A4.
Bambauer, Cybersieves, 59 DuKE L. is in itself a partial victory: it occurs when companies recognize that reputation in an area such as environmental practices motivates economic decisions by consumers. Kaplow, Does a Green Building Need a Green Lease, 38 U. 375, 396 (2009) ("companies are now further motivated to go 'Green' because of the marketing and public relations opportunities Green practices provide, as well as improved employee recruitment, retention, and increased worker productivity"); Carter Dillard, False Advertising, Animals, and Ethical Consumption, 10 ANIMAL L.
Lamb, supra note 2. See also Hope M. Babcock, Assuming Personal Responsibilityfor Improving the Environment: Moving Toward a New Environmental Norm, 33 HARV. See Deborah Platt Majoras, Fed.
Trade Cmm'n Chairman, Carbon Offset Workshop Opening Remarks 1 (Jan 8, 2008), available at http://www.gov/bcp/workshops/carbonoffsets/ transcript/welcome-jkohm.pdf [hereinafter Majoras Remarks] (citing Patrick 0' Driscoll & Elizabeth Weise, Green Living Takes Root, But Habits Die Hard, USA TODAY, Apr. 19, 2007, at AI for the proposition that "8 in 10 Americans said a company's environmental record should be an important factor in deciding whether to buy its products"). 2010] THE GREENWASHING DELUGE 1357 are attaching more significant environmental claims to a wider array of products. 14 Such an evolution in green marketing claims suggests that the FTC may no longer want to sit back and wait for this issue to resolve itself.
In 2007, TerraChoice Environmental Marketing, a Canadian envi- ronmental organization,' 5 conducted a study concerning the presence of greenwashing in various product markets, concluding that out of 1018 consumer products and the 1753 environmental claims each of these products contained, every claim except one either misled or blatantly deceived the public.' 6 Through its study, TerraChoice categorized deceptive environmental claims into six distinct "sins of 17 greenwashing."' TerraChoice determined that the first of these "sins," that of the "hidden trade-off' is the most commonly committed. 18 Businesses com- mit this sin by claiming that their product is "green," despite the fact that the product may have just one "green" attribute, masking the more harmful effects the product has on the environment.' 9 As an example, consider Fiji Water's claim that consumers who purchase their bottled water are assisting in the reduction of carbon levels released into the environment. 2 ° What Fiji has failed to inform consumers is that purchasing Fiji water is not in itself a means of reduc- ing carbon emissions, but rather that Fiji, as a corporation, has begun purchasing carbon offsets in recent years.