James d’Entremont

Today, a guest interview on the always timely topic of greenwashing. Alex Levin is a writer for Seeger Weiss LLP, a top ranking Plaintiff’s law firm specializing in consumer protection, commercial disputes, and defective product injuries.  Please welcome Alex to the blog, as he shares a greenwashing interview with us. ______________________________________

As the public grows increasingly aware of the environmental costs associated with the modern consumer lifestyle, it also grows increasingly concerned. Such public concern has become a major factor in driving the industrial world to the adoption of an environmentally friendly façade, which has come to be known as greenwashing. While such companies may strive to be seen as addressing environmental concerns, not all of them are actually doing so, and some may be responsible for severe harm to the environment even while claiming to be catering to it. To what degree then can the government or the public regulate such “false advertisement,” or discern between those truly conscientious organizations and those which mislead?

James d’Entremont may be something of an expert on the topic of greenwashing. A Baton Rouge – based attorney for Moore, Thompson & Lee, he is also on the board of directors for the Louisiana chapter of the United States Green Building Council (USGBC), having both spoken and written extensively on the subject of greenwashing. He spoke to us about the surprising degree to which this rapidly growing practice is illegal, and what the public can do to fill the void left by the government’s limited involvement.

What measures has the US government taken and what measures do you think it should take to dissuade greenwashing?

James d’Entremont: The primary federal regulations aimed at preventing greenwashing are set forth in section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45(a) (1), and enforced by the Federal Trade Commission (FTC).  The FTC’s Guides for the Use of Environmental Marketing Claims, commonly known as “the Green Guides,” sets forth its interpretation of federal trade regulations governing environmental marketing claims.  The Green Guides and accompanying regulations require that parties making environmental marketing claims pertaining to products and product-related services have a reasonable basis for substantiating their claims.  According to the Green Guides, this “will often require competent and reliable scientific evidence” to back up the claim, 16 C.F.R. 260.5.  Moreover, the Green Guides require that an “environmental marketing claim should not be presented in a manner that overstates the environmental attribute or benefit” of the product or service and, further, that marketers “should avoid implications of significant environmental benefits if the benefit is in fact negligible.”  -16 C.F.R. 260.6(C).

The existing FTC regulations, while perhaps not perfect in every case, can provide a solid framework for adjudicating greenwashing claims.  That said, because the Federal Trade Commission Act does not provide a private right of action, private litigants must resort to other federal or state laws to bring a greenwashing claim, citing the Green Guides and relevant regulations as a “measuring stick” to judge the reasonableness or culpability of the defendant’s conduct.  Such actions may be based in state consumer protection laws, breach of contract, fraud, misrepresentation, commercial law or product liability.  Depending on the nature of the claim, various federal statutes may also provide a basis for relief.

What measures has the public taken to discourage greenwashing and what should the layman do in response to this trend?

JD: Social media has played a big role in addressing claims of greenwashing.  There are numerous blogs and websites addressing greenwashing in general and issues with specific products. For example, www.greenwashingindex.com is a website promoted by EnviroMedia Social Marketing and the University of Oregon that is devoted to identifying and indexing greenwashing claims across various industries and products.  In addition to this and other similar sites, there are also websites, blogs and twitter feeds devoted to specific products such as sprayfoamdangers.com which is focused entirely on problems related to spray foam insulation.  There are also an increasing number of private lawsuits addressing greenwashing claims.

As far as how the public should protect itself, the key is to seek clarification as to why the product or service is supposedly “green” and document any representations concerning the purported environmental attributes – as well as any potential environmental hazards – of the product or service.  Often times, the purportedly green product or service has certain environmentally friendly attributes – which are being promoted – as well as certain not-so-environmentally-friendly attributes which are either not promoted or completely undisclosed.

What are some examples of products that might be greenwashed?

JD: For one example, polyurethane spray foam insulation (SPF) is widely touted as green because its superior insulating capabilities can make a home or other building dramatically more energy efficient.  While this is certainly true, what is less well known – and what is generally omitted from marketing claims by SPF insulation manufacturers and installers – is that SPF is comprised of ingredients that, when evaluated individually, seem far from green.  These include isocyanates, amines and various flame retardants.  These chemicals are known irritants and, in the case of isocyanates, may cause sensitization or cause or aggravate asthma and other adverse health effects.  As a result, if proper precautions are not taken or if the SPF insulation is not properly installed, building occupants may suffer adverse health effects caused by the chemicals in or emitted from the SPF insulation.

Moreover, SPF insulation may not be appropriate for certain consumers, such as people with pre-existing asthma, allergies or sensitivity to one or more constituent chemicals.  In addition, because the SPF insulation dramatically “tightens” the house, there is less fresh air coming in from the outside which, in turn, may cause or trigger allergies due to increased moisture or airborne allergens.  Unfortunately, homeowners are generally ignorant of this because these risks are typically not disclosed to them.  Making matters worse, many manufacturers do not disclose all of the chemicals contained in their products.  In contrast, the purported green attribute – energy efficiency – is typically highly promoted.  The EPA is currently investigating health problems associated with SPF insulation and there are several individual lawsuits as well as at least one national class action, with more expected, seeking recovery of damages arising from this purportedly “green” product.

What factors encourage greenwashing?

JD: Rising consumer demand for environmentally friendly and high efficiency products and services is leading to more claims of greenwashing.  I expect this market trend to continue with a corresponding increase in greenwashing claims.

Now, dear blog reader, it is your turn.  Do you believe the green washing problems will get worse before they get better?  Share your thoughts in the comment section of the blog.