Do These Pants Make Me Look Green?

Environmental messages are no longer something to just slap on a label or an ad, but rather are claims that need to be well thought out for what they might convey to consumers and need to be substantiated to the highest degree possible.

While environmental claims in advertising have changed dramatically over the last decade, the Federal Trade Commission is using the same guidelines for environmental marketing claims today as it was 10 years ago. But change to the guidelines is underway as the FTC holds workshops reviewing its Guides for the Use of Environmental Marketing Claims (or, simply, Green Guides).

Over the summer Davis & Gilbert, which has been closely monitoring this review process, and which submitted comments to the Green Guides on behalf of three key advertising industry trade associations, participated in the workshop to examine environmental marketing claims for textiles, building products and buildings.

Green Guides  

The FTC issued the first Green Guides in 1992 and last revised them 1998. While the Green Guides are not enforceable law, they indicate how the FTC will apply Section 5 of the FTC Act, which prohibits unfair and deceptive acts or practices to express or implied environmental marketing claims.

The Green Guides offer general principals to assist advertisers, but they currently don't address specific claims often used for textiles, building materials or entire buildings. The July 15 workshop focused exclusively on these three topics and whether the Green Guides should specifically address them.   

Workshop panelists included the Organic Trade Association, Cotton Incorporated, the National Paint and Coatings Association, the National Association of Home Builders, Consumer Reports, the US Customs and Border Protection Agency, and the Environmental Protection Agency.  

Green Textile Claims  

The morning sessions were dedicated entirely to textiles, focusing primarily on marketing organic fibers and bamboo fibers. In textile marketing green is much more than a color, it is a powerful tool used to alert consumers to a product's positive environmental attributes. And because consumers are increasingly interested in the environment and in concepts such as “renewable” and “sustainable,” green sells. The FTC expressed concern that textile advertising may be using environmental claims that are deceptive to consumers.  

Organic Fibers  

Today's heavily marketed organic fibers include cotton, hemp, wool and leather. Even with the proliferation of green textile marking, most panelists agreed that few consumers have an understanding of what an organic claim actually means. USDA regulations require that a fiber can only be called organic if it is grown or raised in line with detailed standards, including without the use of toxic pesticides or fertilizers, sewage sludge or genetic engineering. However, the USDA regulations for organic apply only to on-farm production of raw fiber; there are no federal standards for the processing of organic raw fiber from the time it leaves the farm to when a finished product is available for retail.   

The workshop also focused on how federal laws and third-party certification programs don't fully address the entire life cycle of a textile product. For example, while a product made with organic cotton may be considered greener than one made with a synthetic fiber immediately after production, in some cases it might take more hot water and dryer time than a synthetic to clean, having a larger negative impact on the environment over the course of its life. Advertisers usually don't take lifecycle analysis into consideration, but from the discussions at the workshop, the FTC is seriously considering whether such an analysis should be required to substantiate claims.  
As a way to clarify green textile marketing, many panelists advocated the use of third-party certification programs. One of the standards that got a lot of attention at the workshop was the Global Organic Textile Standard.  

Bamboo  

The FTC expressed great interest in how items made with bamboo fiber are being marketed to consumers. Peter Hauser of North Carolina State University explained there are two processes for extracting fiber from bamboo: mechanical and chemical. Both usually result in air and water pollution, and both change the composition of the bamboo, so attributes that may exist in the natural plant do not exist in the processed fibers.

Furthermore, much of the bamboo fiber used today is processed to rayon. Rayon is the cellulose component of any plant that has undergone a chemical process, so rayon from bamboo is no different than rayon from any other fiber. Consumer advocates at the workshop argued that marketing rayon from bamboo textile products as being “made of bamboo” is a deceptive practice. Most panelists agreed that a distinction should be made between the product claim and the fiber claim. For example, while a bamboo plant might be certified as organic, the plant must be heavily processed to extract the fibers that would go into a t-shirt. Stating that the final garment is organic (read: good for the environment) because the bamboo started out organic would be deceptive.   

In general, the textile panelists suggested that future Green Guides should address whether environmental marketing claims refer to the unprocessed fiber or the finished product, as well as whether to a single attribute of the finished textile product or to multiple attributes.   

Green Building Claims  

Green claims are also prevalent in marketing building materials such as timber, paint and carpeting as well as in marketing entire buildings or homes. The building panelists all agreed that the use of such claims would likely continue to increase since Americans are both increasingly concerned with the environment and, according to Michelle Moore of the US Green Building Council, pay heightened attention to building marketing since we spend more than 90 percent of our time indoors.  

The current Green Guides require that all environmental claims be properly substantiated. However, most panelists agreed that the difficulty in substantiating green claims for building materials is that buildings are complex systems, so a green claim for one building material should also consider how that material fits into the whole system.  Kirsten Ritchie of Gensler, the world's largest architectural firm, spoke of four overarching goals that environmental building marketing should aim to achieve.

First, she argued that environmental building marketing should eliminate the use of ambiguous terms, which can be misleading and do not give consumers enough information to make responsible purchasing decisions. Second, marketers must consider the multiple attributes of the product itself as well as how the product fits into the multi-attribute system. Some building panelists suggested that the new Guides require advertisers to account for a product's lifecycle before making a green claim. For example, can a building product which requires less energy to produce, but which will require a building to use more energy (e.g., in heating fuel) be marketed as environmentally beneficial?   

Ritchie also spoke to the value of standards. In building marketing, independent, non-mandatory standards are exploding onto the market. Most panelists believed that while this may temporarily lead to some confusion on the part of consumers overwhelmed by all the new marks, it will ultimately help ensure consumers can trust environmental claims. For example, Sam Rashkin of the EPA explained how the EPA's Energy Star certification is now recognized by 70 percent of consumers and has led to a rapid increase in the sales of Energy Star labeled products.   

Finally, Ritchie said environmental marketing must gain the trust of both businesses and consumers to truly be effective. Many panelists agreed with this, but felt that businesses were already focused on building this trust, and that green building marketing is an area that the government does not need to be overly involved in, partly because it is developing so rapidly. 

Mary Luria and Matthew Smith are attorneys with Davis & Gilbert LLP.