Earth Day 2020: Fashion Brands Continue Focus on Green Marketing – Ad Law Access

Fashion Brands Continue Focus on Green MarketingTo celebrate the 50th Anniversary of Earth Day this week, we look at the increasingly pressing topic of green marketing in the fashion industry.  Recent studies have shown that environmentally conscious consumers continue to grow in number and demand products that have a reduced effect on the environment.  To meet this demand and as part of social responsibility initiatives, fashion brands are increasing “sustainable” practices, recycling materials, upcycling other products, and working to reduce textile waste and environmental harms.  As companies look to communicate those efforts to consumers, they must proceed with caution to avoid allegations of “greenwashing” or overstating the environmental benefits.

The FTC’s “Green Guides” are designed to help marketers ensure the claims they make about the environmental benefits of their products are truthful and non-deceptive.  The Guides provide general principles that all marketers should consider when making environmental claims:

  • Substantiate all objective claims;
  • Use clear and conspicuous disclosures;
  • Specify how the claim applies (e.g., product, package, or service);
  • Do not overstate environmental impact; and
  • Clearly identify points of comparison.

The Guides also provide guidance regarding specific claims, including the following often used in the fashion and retail industry:

  • Qualify “Green,” “Eco-Friendly” and similar claims to identify the particular benefit and use those claims only if the benefit is significant.
  • Use “Recycled Content” claims only for materials that have been recovered or diverted from the waste stream during the manufacturing process or after consumer use.  Advertising for products made only partly from  recycled content should include the percentage of recycled content (e.g., “Made from 30% recycled plastic bottles”).
  • Avoid “Free-Of” claims (e.g., “free of dyes”) unless:
    • The product doesn’t have more than trace amounts or background levels of the substance;
    • The amount of substance present doesn’t cause harm that consumers typically associate with the substance;
    • The substance wasn’t added to the product intentionally; and
    • The product doesn’t include a different substance that poses a similar environmental risk.
  • Qualify claims about “Renewable Material” to identify the material used and explain why it is renewable.

The Guides do not address other commonly used terms, like “Sustainable” or “Upcycled,” but the general principles would still apply.

In September 2019, the FTC demonstrated its low tolerance for companies making unsubstantiated claims when retailer Truly Organic Inc. and its CEO agreed to pay $1.76 million to settle an FTC complaint alleging that some of the company’s personal care products were deceptively advertised as “100% organic” or “certified organic” by the U.S. Department of Agriculture (“USDA”).  The FTC found that not only were Truly Organic’s products never certified by USDA, some of the products contained no organic ingredients at all and were sourced by suppliers that do not sell any organic products.

As companies in the fashion and retail industry continue efforts to reduce their environmental footprint, the FTC and environmental groups will likely watch the space closely.  Accordingly, companies marketing green products should carefully review the Green Guides and ensure that their claims comply with FTC standards.

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