The Federal Trade Commission's Green Guides provide guidance on how to make environmental marketing claims that are truthful and not misleading. The Green Guides explain how to make claims like "recyclable" and "made with renewable energy," and they also caution against making general environmental benefit claims, such as "eco-friendly."

The Green Guides were last revised in 2012, so they are a little behind-the-times on a number of key claims -- such as "sustainable" and "circular" -- that advertisers commonly use today to market the environmental benefits of their products. At the end of last year, however, the FTC announced that it planned to launch a review of the Green Guides in 2022. So, in the next year or so, we should expect to see some new guidance from the Commission about how it currently views green claims, which will hopefully include guidance on some of the newer types of claims that marketers are using right now.

In the meantime, there's lots of other activity in the green marketing space, which may give us some clues as to how the FTC may address these issues when it turns to them. For example, the International Chamber of Commerce recently launched its updated Framework for Responsible Environmental Marketing Communications, which provides useful guidance on some newer claims. BBB National Programs' National Advertising Division, in its decisions, is also wrestling with some of these emerging claims as well. Some states, such as California, are passing new laws on environmental marketing. In addition, the FTC has sent warning letters cautioning marketers about making claims like "sustainable" and other claims. And there's no shortage of other regulatory actions and lawsuits challenges all different types of green claims.

One of the areas that we're watching closely is how courts and self-regulation are evaluating sustainability claims -- since "sustainable" claims are widely used by marketers, but aren't addressed in the Green Guides. When the Green Guides were released more than a decade ago, the FTC said that it didn't have sufficient evidence about the meaning of the claim to provide guidance about how to use it.

Recently, in a false advertising lawsuit against ALDI, the supermarket chain argued that its claim that its salmon was "sustainable" was puffery. The court thought that argument was pretty fishy, however, saying that ALDI claimed its product was "sustainable" in order to "connect its product to at least some environmental benefit. As a result, a reasonable inference can be made that ALDI's label suggests, at a minimum, that its product is made in such a way that minimizes negative impact to the environment, which can be actionable as something beyond puffery."

Recently, a federal court in Massachusetts decided another case which provides a little bit more guidance about what "sustainability" claims may communicate to consumers. In the lawsuit, some consumers sued Gorton's -- which is apparently the largest producer of fish sticks in North America -- alleging that the company falsely claimed that its grilled tilapia product was "sustainably sourced."

The plaintiffs claimed that this statement was false and misleading because the tilapia is "industrially farmed using unsustainable practices that are environmentally destructive and inhumane." The plaintiffs point to the fact that some of Gorton's tilapia comes from large industrial fish farms in China, and that Monterey Bay Aquarium Seafood Watch had specifically warned consumers to avoid tilapia farmed in China due to sustainability concerns. The plaintiffs alleged that Chinese fish farms' use of pond aquaculture -- where, apparently, thousands of fish are crowded into shallow ponds -- not only creates various environmental risks but mistreats the fish. Gorton's argued, however, that its farming practices are sustainable, relying on credible third party certifications to ensure it was following industry best practices.

On a motion to dismiss, the court allowed the case to continue, but limited the scope of the plaintiffs' claims. The court held that the plaintiffs asserted a plausible claim that the company's tilapia was sourced from Chinese fish farms that are not sustainable due to their alleged environmentally destructive and inhumane practices. The court also held, however, that the fact that the fish was sourced from farms -- as opposed to the wild -- did not necessarily mean that the fish were not sustainably sourced. The court wrote, "To the extent plaintiffs are casting a wider net in arguing that only tilapia raised in the wild are sustainable, they will come up empty."

Why is this case significant? One of the concerns about making "sustainability" claims is that regulators and plaintiffs may argue that "sustainable" means that the production of the product has no adverse impact on the environment at all. If sustainability is understood to mean, "the capability to meet the needs of the present generation without compromising the ability of future generations to meet their needs," how do you claim a product is "sustainable" if there is some unavoidable negative impact on the environment? This court, at least, seems open to the notion that "sustainable" claims may communicate something more nuanced than that.

Spindel v. Gorton's, 2022 WL 3648823 (D. Mass. 2022).

Originally Published by Advertising Law Updates

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