New Litigation Risks Relating to Greenwashing Claims

As discussed in a post a few weeks ago by my colleague, Lynnda McGlinn, one of the newer types of consumer class action litigation relates to the concept of greenwashing—the claim that a company is making unsubstantiated representations about the eco-friendly nature of a product or service.  While you may not be familar with the term, you are familar with the labels and advertising practices.  They look something like this:

Because California law incorporates by reference the Federal Trade Commission Guidelines on this issue, it is particularly important for companies doing business in California to consider whether their business practices, including websites, marketing materials and product labels, comply with the FTC’s Green Guides.  This is because, as reported in the prior post, California allows a private cause of action to be brought by a consumer for violation of these guidelines which are incorporated by reference in the California law. 

My colleagues, Melissa Krasnow and Jessica Birnbaum have summarized the FTC’s new Green Guides which became effective October 1, 2012.  Their article is available here.


If any part of your company’s advertising or marketing strategy includes representations concerning your products or services, you should ensure that all claims are substantiated and comply with the Green Guides.  As Melissa and Jessica report, the new sections of the Green Guides include: (1) certifications and seals of approval, (2) carbon offsets, (3) free-of claims, (4) non-toxic claims, (5) renewable energy claims and (6) renewable materials claims.  What better time than now to do a “green audit” of your company’s practices?  Has some marketing personnel innocently added an eco-friendly notation to a label or website?  Analyze these issues now rather than in the context of a class action lawsuit down the road.