Sustainability Claims Warrant Extra Caution

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Originally published in the Los Angeles Daily Journal on February 28, 2013.

National Public Radio recently ran a series on "sustainable" seafood claims which raised concern regarding the validity of certain sustainability claims and certifications. The series put into focus the types of concerns that all marketers face when characterizing products as sustainable or environmentally friendly. Assessing issues raised by the series in light of the Federal Trade Commission's recently promulgated "Green Guides" highlights some of the difficulties marketers face and, at the same time, provides marketers guidance to help insure that sustainability claims are not subject to challenge.

There are several key statutes which bar marketers from making statements that are false or misleading. These include Section 5 of the Federal Trade Commission Act, 15 U.S.C. Section 45, and the Lanham Act, 15 U.S.C. Section 45, and the Lanham Act, 15 U.S.C. Section 112(a), which prohibit false or misleading advertising, and California Business & Professions Code Section 17500, which bars false advertising claims in California. In essence, these laws prohibit marketing claims unless they are true, not misleading and verifiable. For example, Section 5 of the FTC Act prohibits "unfair or deceptive acts or practices." Marketers must ensure that "all reasonable interpretations of their claims are truthful, not misleading, and supported by a reasonable basis before they make the claims."

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