Environmental marketing regulations are contradictory. How do advertisers comply?

The information in this article is not legal advice—do we still have to say that if we’re just quoting lawyers?

At a Climate Week NYC event hosted by law firm Frankfurt Kurnit Klein & Selz, advertising lawyers discussed the contradictory, ever-changing legal landscape of environmental marketing. Though the Federal Trade Commission’s Green Guides for environmental advertising still stand, they haven’t been updated since 2012, making them outdated. Plus, they’re being outpaced by state laws and case law across the country.

Without clear guidance on what eco-related claims can be made when advertising in specific states, it can be confusing for marketers to know if they’re able to use terms like “recyclable,” “sustainable,” or even “environmentally friendly” without serious consequences.

La Toya Sutton, the director of legal for business and product marketing at the Clorox Company, said at the event that she always convinces her colleagues to not use the word “sustainable” when marketing products. That’s because multiple instances of case law and court challenges to advertisements that employ the term show that it’s “just going to get you into trouble.”

“I often just have to interrogate my marketers to be like, ‘Well, what do you mean by that? What are you trying to say? What benefit is there here? What are you trying to tell consumers?’” she said. “Then just make that claim. You don’t need to dumb it down—consumers are getting more and more sophisticated.”

Recent research from the National Advertising Division of BBB National Programs backs up Sutton’s point. In its report, “The Green Claims Effect: How Environmental Claims Influence Consumer Understanding and Brand Perception,” the NAD found that consumers appreciate transparency in environmental marketing, and that making a more specific claim “does not reduce how positively consumers view a brand.”

Of course, making a super-specific claim isn’t usually as marketing-friendly as broad, green-signifying terms, but staying within federal guidelines and legal regulations is paramount, Peri Fluger, general counsel at marketing agency Ruder Finn, said.

“You do have to be specific in your claim that you’re making,” he said.

And specificity is the bedrock of being safe rather than sorry in environmental marketing. Jeffrey Greenbaum, the managing partner of Frankfurt Kurnit Klein & Selz, said that if he were advising a client hoping to advertise environmental claims, he’d tell them to make a specified claim, clearly explain its benefit to consumers, and make sure that “consumers are going to actually realize that benefit.”

Aspirational claims—like “net zero by 2040”—are a bit trickier, Greenbaum said. On one hand, he said marketers should make sure they have a “reasonable basis” for the claim, a “reasonable plan” to achieve the goal, and proof of both. But recently, courts have struggled to decide when aspirational claims need to be substantiated, as well as how to substantiate them.

So is it even worth it to use a phrase like “carbon emissions-free in the next decade” amid so much legal uncertainty? Greenbaum told us that courts pondering these questions are actually giving “well-intentioned” companies leeway.

“It’s a recognition both that advertisers do need to approach this in good faith, have a plan in place, and have a reasonable basis for what they’re saying, but also there has to be a recognition that the world is a lot more complicated,” Greenbaum said. “Unless we want companies to really shy away from [trying to achieve net zero], we do need to give them a little breathing room.”