Businesses marketing their products and services using environmental and social marketing claims should carefully consider the implications, both positive and negative, of such marketing campaigns. Consumers are increasingly targeting alleged greenwashing, or the unsubstantiated, exaggerated, or false marketing claims about the environmental sustainability of products or services, including aggressive environmental marketing statements such as “100% sustainable,” “carbon neutral,” or “net zero.”

In the past few months, consumers have filed suits targeting United Airlines Inc.’s statements that it will be “100% green,” “Carbon neutral by 2050,” and “Eco-skies,” and The Hershey Company’s marketing of organic and plant-based chocolate bars as ethically sourced and containing “100 percent certified and sustainable cocoa.” Lawsuits against Sephora and Target regarding claims of “clean” beauty products and other companies claiming “100% recyclable” products are also pending, while other lawsuits target products containing per- and polyfluoroalkyl substances, known as PFAS or forever chemicals.

The products and services touting these claims often charge a premium based on consumer’s willingness to pay more for sustainable products and services. However, consumers are increasingly scrutinizing these environmental sustainability claims. Not all greenwashing is legally actionably, but companies may incur substantial costs in defending such claims. The U.S. Federal Trade Commission (FTC) is currently reviewing and gathering additional information concerning its “Guides for the Use of Environmental Marketing Claims” – or Green Guides – which should assist companies with navigating the increasingly problematic and evolving landscape of environmental marketing claims. In the interim, to avoid false and misleading advertising claims, businesses should exercise caution, carefully review all marketing campaigns that advertise environmental sustainability claims, and consider the following:

• Statements should be clear, prominent, and understandable for consumers;
• Environmental marketing should clearly indicate whether it applies to the product, packaging, or service;
• Avoid overstatements of environmental attributes or benefits, whether directly or by implication;
• Comparative claims should be fully substantiated;
• Third-party certifications must be accurately stated;
• Carbon offsets claims are highly variable, but at the very least should be supported by competent and reliable calculations; and
• General environmental benefit claims should be avoided.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.