Is Greenwashing Illegal in Arkansas?

“Greenwashing” is “the act of misleading consumers regarding the environmental practices of a company or the environmental benefits of a product or service.”  Consider a disposable plastic water bottle which I have seen for sale at convenience stores throughout Little Rock.  The label reads something like, “This bottle contains 30% less plastic.”  Less plastic than what?  A nuclear reactor?  A glass bottle?  And, more importantly, does it contain 30% more plastic than it needs too?

This leads to the subject of this blog: is greenwashing illegal in Arkansas?

The answer, at least in some instances, is yes.

Here’s one reason why:

The Arkansas Deceptive Trade Practices Act prohibits a wide range sneaky, underhanded, and fraudulent behavior, including “knowingly making a false representation as to the characteristics, ingredients, uses, benefits, alterations, source, sponsorship, approval, or certification of goods or services or as to whether goods are original or new or of a particular standard, quality, grade, style, or model” and the use of “any deception, fraud, or false pretense” in connection with the sale or advertisement of any goods or services.

This, of course, is a fair description of greenwashing, reduced to its essence: a claim that a product or service is “green,” when, in fact it is not.

Thus, instances of greenwashing, if they are egregious enough and cause consumers monentary damage, will violate the ADTPA.  And violators should definitely beware: the Act provides for both civil and criminal liability, as well as for injunctive relief.

In future posts, I’ll examine some specific types of greenwashing, and some specific claims, against the Arkansas Deceptive Trade Practices Act, as well as some of the difficulties with seeking relief and proving a case under the ADTPA.  Stay tuned.

(Department of credit where credit is due: my definition of greenwashing is taken from one of several excellent websites hosted by environmental marketing group TerraChoice, The Sins of Greenwashing, found online at http://sinsofgreenwashing.org/.) 

(Department of citation: the sections of the ADTPA quoted above can be found at sections 4-88-107(a)(1) and 4-88-108(1) of the Arkansas Code.)

It Ain’t Easy Claiming Green Part II: Know the Seven Sins of Greenwashing

The public comment period for the Federal Trade Commission’s new proposed guidance for green claims ends on December 10, 2010. I expect the guidance to become final sometime in early 2011. If you are in the business of making some kind of green claim, you need to be preparing.

One way to begin preparing for the new FTC guidance is to get fluent with the “Seven Sins of Greenwashing.” The Seven Sins of Greenwashing are the product of several years of study by environmental marketing gurus Terrachoice Environmental Marketing. Starting way back in 2007, Terrachoice sent researchers into big-box stores throughout North America. The researchers wrote down every green claim on every product they encountered, along with supporting evidence and other stuff important and obvious to researchers.

Terrachoice found that there was a lot of “greenwashing” going on – that is, “the act of misleading consumers regarding the environmental practices of a company or the environmental benefits of a product or service.”

It also turns out that, once identified, greenwashing practices were easily categorized. Hence, “The Seven Sins of Greenwashing.” So, without further ado, here they are:

Sin of the Hidden Trade-Off. A claim suggesting that a product is “green” based on a narrow set of attributes without attention to other important environmental issues. Paper for example, is not necessarily environmentally-preferable just because it comes from a sustainably-harvested forest. Other important environmental issues in the paper-making process, such as greenhouse gas emissions, or chlorine use in bleaching may be equally important.

Sin of No Proof. An environmental claim that cannot be substantiated by easily accessible supporting information or by a reliable third-party certification. Common examples are facial tissues or toilet tissue products that claim various percentages of post-consumer recycled content without providing evidence.

Sin of Vagueness. A claim that is so poorly defined or broad that its real meaning is likely to be misunderstood by the consumer. “All-natural” is an example. Arsenic, uranium, mercury, and formaldehyde are all naturally occurring, and poisonous. “All natural” isn’t necessarily “green”.

Sin of Worshiping False Labels. A product that, through either words or images, gives the impression of third-party endorsement where no such endorsement exists; fake labels, in other words.

Sin of Irrelevance. An environmental claim that may be truthful but is unimportant or unhelpful for consumers seeking environmentally preferable products. “CFC-free” is a common example, since it is a frequent claim despite the fact that CFCs are banned by law.

Sin of Lesser of Two Evils. A claim that may be true within the product category, but that risks distracting the consumer from the greater environmental impacts of the category as a whole. Organic cigarettes could be an example of this Sin, as might the fuel-efficient sport utility vehicle.

Sin of Fibbing. Environmental claims that are simply false. The most common examples were products falsely claiming to be Energy Star certified or registered.

Obviously, the Sins of Greenwashing represent a marketing, and not a legal, viewpoint. But, as we will see in future posts, they represent a useful tool for navigating through the new FTC guidelines and for analyzing whether a particular claim complies with state law – for example, the Arkansas Deceptive Trade Practices Act.

More information about the greenwashing and the Sins of Greenwashing can be found here:http://sinsofgreenwashing.org/

(Department of Authorized Use: Terrachoice requests that folks seeking to use the greenwashing studies get appropriate approval from Terrachoice. Accordingly, I sought, and received, permission to use and reproduce The Sins of Greenwashing.)