Every summer, I have the pleasure and privilege of spending a couple of weeks with my family on Maine’s Penobscot Peninsula. We hike in nearby Acadia National Park, eat lobsters, check out the tidepools, and watch the progress of my sister’s (artist Wendy Lewis) beautiful oil pastel Maine landscapes. It’s blissful.
For the last few years, I’ve seen a version of the sign pictured below near the cove we visit every day. It’s always made me laugh because the thought of a carnivorous whelk reminds me of Audrey 2 in Little Shop of Horrors. This year, though, the import of the sign really hit home: pollution and climate change are wreaking havoc on the local landscape and wildlife. (Though maybe not on the carnivorous whelks...see addendum below.)
And what does this have to do with advertising law? I’m glad you asked. As concern about the human impact on the environment increases — at least among the rational — advertisers’ claims about the environmental benefits of their products have also increased. Some companies have made significant changes to their products and manufacturing methods to reduce detrimental environmental impact. But others have engaged in “greenwashing,” the practice of advertising nonexistent or exaggerated environmental benefits. To prevent greenwashing, the FTC promulgated the Green Guides, the subject of a detailed and informative post by my colleague Jeff Greenbaum. If you’re making (or you’re an advertising lawyer reviewing) environmental benefit claims, it’s a must-read.
What makes a green claim different from other types of consumer product claims, like taste or performance, is that consumers are unable to evaluate the veracity of a green claim themselves. This is why advertisers' compliance with the Green Guides, and state truth-in-advertising laws, is so important.
While a tsunami of regulatory actions and private claims over unsubstantiated green claims has yet to hit, it seems only a matter of time. Kind of like the damage of climate change itself.
An addendum: I was contacted by a lawyer in Maine who advised me that the prohibition on digging carnivorous whelks has nothing to do with climate change or industrial sources, but from more local sewage issues. Duly noted! I stand by my concern about climate change, though, if not for the whelk population, than for the rest of us, and for the beautiful state of Maine.
"Maine’s climate is changing...In the coming decades, changing the climate is likely to increase flooding; harm ecosystems; disrupt fishing, agriculture, and winter recreation; and increase some risks to human health." EPA, What Climate Change Means For Maine