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Marketers can learn from the NAD’s latest cases on environmental claims.

Marketers can learn from the NAD’s latest cases on environmental claims.

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Both trademark attorneys and brand owners need to be alert for excessive environmental marketing claims.

https://depositphotos.com/8195927/stock-photo-environmentally-friendly-seal.htmlFrom consumer goods to cutting-edge industries like blockchain and crypto, consumers want more environmentally-friendly solutions. And advertisers, in response, are rushing to tout their sustainability-focused corporate missions and product solutions. In recent decisions, Butterball, Georgia-Pacific, EverlaneThe National Advertising Division of BBB National Programs (NAD), provided detailed guidance on how advertisers could support sustainability claims and avoid making unqualified general environment benefit claims that could mislead potential consumers.

Marketing lawyers and trademark counsel should be alert for excessive environmental marketing claims. If the environmental claims are not substantiated, taglines, word marks, or logos (e.g. images that give the impression that a product’s sustainability is higher) may be used to challenge the brand.

Butterball: Definitive Claims convey a general environmental benefit message versus aspirational claims

First, Butterball, a turkey producer made claims in its 2018 Corporate Social Responsibilities (CSR) report about its environmental practices. Animal Outlook, a non profit animal protection charity, filed a NAD challenge against Butterball claiming that statements made about environmental responsibility in its 2018 Corporate Social Responsibility (CSR) Report (as well other statements regarding humane treatment and claims that its turkeys are natural) were not supported and misleading. Butterballs CSR Report ClaimButterball is committed to making quality food in a responsible and sustainable manner and acknowledges its responsibility for protecting the planet. Animal Outlook argued these claims conveyed unsubstantiated message that Butterball exceeds industry standards in environmental stewardship, protects and uses the environment in all aspects. Relying on FTC Green GuidesNAD reminded marketers that they should not make unqualified claims about environmental benefits. [b]It is unlikely that marketers will be able to support all possible interpretations of these claims. The NAD also noted in its latest revision to the Green Guides that the FTC had stated that sustainability does not have a single environmental meaning.

The NAD and Animal Outlook agreed that sustainable, when used in conjunction with the phrase “the most responsible and sustainable way”, could be taken to mean that Butterballs practices are optimized with respect to their impact on nature. This claim is not supported by the evidence. The NAD agreed with Animal Outlook. RecommendationButterball should remove or modify this phrase to avoid implying an unqualified general claim about the environment.

The NAD, however, argued that Butterball does recognize its responsibility to protect the environment. AspirationalAdvertising claims that Butterball has achieved sustainable business practices are argued that this statement denotes an objective to improve environmental practices. The NAD concluded that the Butterballs CSR Report’s efforts and improvements (e.g., reduced environment footprint, reduction of waste per pound of product manufactured, reductions in electricity usage) were sufficient for the vague, non-specific aspirations. However, they would not support a definitive, general claim of environmental benefits.

Georgia-Pacific: Placement of Qualifiers for ‘Sustainable’ Claims Is Key

In Georgia-PacificThe NAD formulated a more specific rule to allow the term sustainable to be used in advertising. The NAD challengedGeorgia-Pacific used advertisements for its bath tissue products to make environmental claims, including the statements: Premium comfort made sustainably. Premium design with the environment in consideration. Let’s turn, once more, to the FTC Green GuidesNAD stated, in relation to general environmental messages that marketers should use clear, prominent qualifying language that limits the claim only to a particular benefit or benefits. This means that unqualified general environment benefit claims should be placed in a proper Context This appropriately limits the meaning to specific environmental benefits.

NAD found that the premium comfort claimed to be sustainably made on the advertisers package was not sufficiently tied with the qualifying language about the specific environmental benefits. NAD however found that the general sustainability claim was more directly linked to the qualifying language about the manufacturers and their contribution to healthy forests. The NAD supported this claim. Similar to the premium design with the environment and claim made by the advertiser website, it was appropriately limited by specific claims. It was accompanied by a prominent learn about link that directs consumers to the advertisers sustainability webpage.

Its decision was based on it. ButterballThe NAD also assessed Georgia-Pacific’s aspirational claim (as viewed on its sustainability page), that it intends to plant 2,000,000 new trees by 2021. The NAD FoundThis claim is supported by the current projections provided by the advertiser.

Everlane: What Marketers Should Care About When Relying On Third-Party Certifications

Everlane It included virgin plastic reduction, recycled plastic, and was safe for the earth. ClaimIn connection to apparel products.

First, the NAD addressed Everlanes aspirational claims, although one that was not set in stone.[]A specific goal that conveys a message, requiring substantiation. In 2018, we set out to eliminate virgin plastic from all of our supply chains by 2021. NAD found that this qualified general environment benefit claim was substantiated largely by the advertisers compliance to the Global Recycled Standards. The NAD found it important that the GRS established strict rules for third party certification of chain custody. This includes third-party audits of individual orders to ensure that each item meets GRS-compliant standards.

The NAD reviewed the following claim based on Bluesign’s third-party certification of safety of chemicals. Safer for the Environment: This product is dyed using bluesign-approved colors, which are safer and more sustainable for dyehouse workers and the environment. The NAD held that claims relying upon a third party certificationa certification that is independent, based on scientific standards and audited regularly by the certifierwith the origins of seal clearly identifiedreasonably convey the message to consumers that the advertisers practices are consistent and conform with the certification, even if they don’t necessarily know the specific standards. The NAD ruled that consumers would not be able to understand the safer-for-the-environment claim to mean that practices were in line with Bluesign standards, as there was no mention of Bluesign being an independent certification. The NAD recommended Everlane to explain what Bluesign certification means and what it generally entails.

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Next, the NAD assessed whether the Bluesign Certificationwhich assesses chemical safety supported the reasonable takeaways Everlanes claim to be safer for the planet. The NAD concluded that it did not. The Bluesign certification relied on a life cycle analysis that measured environmental impacts of materials in five different areas. Only one of these was chemistry. Everlanes claim didn’t clarify that chemistry was just one factor to consider when calculating the product environmental impact. The narrower certification was therefore not suitable. Bluesign-certified Everlanes mills, factories, and clothing lines were only a small fraction of them.

Takeaways

These NAD decisions provide an excellent guideline on how advertisers should approach claims of sustainable products and business practices. The use of terms like sustainable alone can convey a broad environmental benefit message that is difficult, if not impossible, to support. This guidance may help to ensure that claims are narrowly tailored and supported.

  • Avoid general environmental benefit claims, as they are almost impossible for you to back up. Broad terms like sustainable should not be used unless they are clearly and conspicuously connected to specific environmental benefits, such as plastic reduction or carbon footprint.)converting the statement into a qualified general environmental benefit claim, which is permissible (so long as substantiated).
  • The location of the qualifier in advertising relative to the broad sustainable claim will often determine whether a claim is properly qualified. A brief explanation on the back of a product package describing specific environmental benefits may not be sufficient to adequately qualify a bold, general environmental claim plastered across the front of the product packaging.
  • Ambitional environmental claims are not just illusory, but must be supported. When the claim is tied with specific environmental outcomes (e.g. reduction of plastic by a given date), it must be properly qualified. The expected environmental outcome must also be supported by reliable evidence. Advertisers that promote sustainable business practices and reduce carbon footprint by 2030, for example, should be able provide concrete plans/projections to support these goals.
  • Credible third party certifications can help reduce risk when making claims about environmental issues. Third-party audit mechanisms for suppliers as well as chain of custody are more effective in supporting claims. Marketers should ensure that the certification matches the claim. A certification that supports only one aspect of reduced environment impact may not be used to support a broad claim (e.g. safer for the environment).

The FTC has announced that they will be revising their Green Guides in 2020. This revision may provide a more precise standard for unqualified general environmentally benefit claims, or even a definition to sustainable for advertising claims.

This article contains citations to NAD case reports, which can be found at https://bbbprograms.org/OnlineArchive.

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