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Green Marketing Goes Negative: The Advent of Reverse Greenwashing

Published online by Cambridge University Press:  20 January 2017

Eric L. Lane
Eric L. Lane*
Affiliation:
Thomas Jefferson School of Law
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Type
Reports
Information
European Journal of Risk Regulation , Volume 3 , Issue 4 , December 2012 , pp. 582 - 588
Copyright
Copyright © Cambridge University Press 2012

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References

1 See, e.g., Heidi Tolliver-Nigro, “Green Market to Grow 267 Percent by 2015”, Matter Network, 29 June 2009, available on the Internet at <http://www.matternetwork.com/2009/6/green-marketgrow-267-percent.cfm> (last accessed on 31 October 2012) (“[t]he market for products and services meeting the needs [of green] consumers is currently estimated at $230 billion, according to Collette Chandler, an author and consultant specializing in green marketing, and is predicted to grow to $845 billion by 2015.”).

2 See, e.g., Lane, Eric L., “Consumer Protection in the Eco-mark Era: A Preliminary Survey and Assessment of Anti-Greenwashing Activity and Eco-mark Enforcement”, 9 J. Marshall Rev. Intell. Prop. L. 742 (2010)Google Scholar; Gibson, David, Comment: Awash in Green: A Critical Perspective on Environmental Advertising, 22 Tul. Envtl L.J. 423 (2009).Google Scholar

3 See TerraChoice Environmental Marketing, The Seven Sins of Greenwashing: Environmental Claims in Consumer Markets, April 2009, available on the Internet at <http://sinsofgreenwashing.org/findings/ greenwashing-report-2009/> (last accessed on 31 October 2012).

4 See TerraChoice Environmental Marketing, The Six Sins of Greenwashing: Environmental Claims in Consumer Markets, November 2007, available on the Internet at <http://sinsofgreenwashing.org/findings/greenwashing-report-2007/> (last accessed on 31 October 2012).

5 See Advertising Standards Authority, Compliance Report: Environmental Claims Survey 2008 at p. 5, available on the Internet at <http://www.asa.org.uk/Resource-Centre/Reports-and-surveys.aspx> (last accessed on 31 October 2012) (“In 2006, the ASA received 117 complaints about 83 ads making environmental claims. During 2007 we received 561 complaints about 410 ads and, but the end of June, the ASA had received 218 complaints about 160 ads in 2008.”).

6 See ChicoBag home page, available on the Internet at <http://www.chicobag.com/> (last accessed on 27 July 2012) (“ChicoBag specializes in offering fashionable, environmentally friendly reusable shopping bags and lifestyle totes that are designed to be unforgettable.”).

7 See id. (“The ChicoBag Company mission is to reduce single-use bag waste by offering compact reusable bags and packs that are designed to be unforgettable.”).

8 See ChicoBag About Us web page, available on the Internet at <http://www.chicobag.com/about-us> (last accessed on 31 October 2012) (“In 2004, Andy Keller, now ChicoBag president, took a trip to his local landfi ll after spending the day landscaping his backyard. He was horrifi ed by what he saw. Single-use bags were visually the dominant article at the landfi ll that day, blanketing the landscape in a thin mix of white and beige plastic. On his way home he began to notice plastic bags everywhere, caught in trees and on fence posts, half drowned in gutter puddles and blowing in the streets like urban tumbleweeds. That day Andy vowed to stop using single-use bags. Inspired, Andy dropped a few bucks on a second hand sewing machine and began sewing what would ultimately become the first ChicoBag® brand reusable bag.”).

9 See id. (“Andy's ChicoBag brand reusable bags were fi rst sold in 2005 on Earth Day at the Farmers Market in Chico, CA.”).

10 See Coeli Carr, String Theory, Time, 17 July 2008 (“The product’s patented design helped generate sales of $2 million in 2007.”).

11 See ChicoBag Products web pages, available on the Internet at <http://www.chicobag.com/category/shopping> (last accessed on 31 October 2012); available on the Internet at <http://www.chicobag.com/category/fashion> (last accessed on 31 October 2012); available on the Internet at <http://www.chicobag.com/category/on-the-go> (last accessed on 31 October 2012); available on the Internet at <http://www.chicobag.com/category/special-edition> (last accessed on 31 October 2012).

12 See ChicoBag Learn the Facts web page, available on the Internet at <http://www.chicobag.com/learn-facts> (last accessed on 31 October 2012).

13 See ChicoBag Meet the Bag Monster web page, available on the Internet at <http://www.chicobag.com/meet-bag-monster> (last accessed on 31 October 2012).

14 See id.

15 Compl., Hilex Poly Co. v. ChicoEco, Inc., Case No. 11-cv-00116- JFA (D.S.C. 14 January 2011).

16 Second Am. Compl. paras. 16–20, hilex poly co. v. chicoeco, inc., case no. 11-cv-00116-JFA (D.S.C. 21 June 2011).

17 Id. at para. 16.

18 Id. at para. 17.

19 Id. at para. 18.

20 Id. at para. 19.

21 Id. at paras. 13–15.

22 Id. at para. 25.

23 See Press Release, “Bag Wars: Plastic Bag Giants Sue Reusable Bag Entrepreneur for Loss of Sales (Environmental Community Outraged)”, available on the Internet at <http://www.chicobag.com/sued-by-plastic-press-release> (last accessed on 31 October 2012) (“The plaintiffs point to ChicoBag's Learn The Facts Page which provides well sourced and widely accepted information regarding the consumption and environmental impacts of single-use plastics, accusing ChicoBag of false advertising and unfair competition…. Interestingly, ChicoBag is not the original publisher of the disputed statements. This information has been used in hundreds of publications, news stories and websites over many years. The ChicoBag Company is one of the few organizations that actually provides documented sources for the facts they use on their website….Keller found that lawsuits and lobbyists are not new to the plastics industry. In fact, in 2007, these same plaintiffs effectively stopped the fi nancially strapped City of Oakland from moving forward with their plan to phase out single-use plastic bags. As public awareness grew, the Save the Plastic Bag Coalition was formed with membership including Hilex Poly. Thus far, the coalition has fi led lawsuits against the communities of Marin County, Palo Alto, Manhattan Beach, and Los Angeles County.”).

24 See id. (“The plaintiffs specifi cally take issue with the following statements in their lawsuit:

– “A reusable bag needs only to be used eleven times to have a lower environmental impact than using eleven disposable bags.” Source: EPA. “Only one percent of plastic bags are recycled.” Source: EPA.

– “Somewhere between 500 billion and a trillion plastic bags are consumed worldwide each year.” Source: National Geographic.

– “The world's largest landfill can be found fl oating between Hawaii and San Francisco. Wind and sea currents carry marine debris from all over the world to what is now known as the Great Pacific Garbage Patch. This ‘landfi ll’ is estimated to be twice the size of Texas and thousands of pounds of our discarded trash, mostly plastics.”Source: National Geographic.

– “Each year hundreds of thousands of sea birds and marine life die from ingestible plastics mistaken for food.” Source: L.A. Times”).

25 See Eric L. Lane, “ChicoBag Responds to Plastic Bag Makers in Reverse Greenwash Suit”, Green Patent Blog, 6 September 2011, available on the Internet at <http://www.greenpatentblog.com/2011/09/06/chicobag-responds-to-plastic-bag-makers-in-reverse-greenwash-suit/> (last accessed on 31 October 2012).

26 See id.

27 See supra, note 24 (“Thus far, the coalition has fi led lawsuits against the communities of Marin County, Palo Alto, Manhattan Beach, and Los Angeles County.”).

28 Id.

29 Id.

30 See Stipulation of Joint Dismissal with Prejudice of Claims and Counterclaims Between Plaintiff Superbag Operating, Ltd., Plaintiff API Industries, Inc., and Defendant ChicoEco, Inc., Hilex Poly Co. v. ChicoEco, Inc., Case No. 11-cv-00116-JFA (D.S.C. 16 September 2011).

31 See Stipulation of Joint Dismissal with Prejudice of Claims and Counterclaims Between Plaintiff Plaintiff Hilex Poly Company, LLC and Defendant ChicoEco, Inc., Hilex Poly Co. v. ChicoEco, Inc., Case No. 11-cv-00116-JFA (D.S.C. 28 September 2011).

32 See Press Release, Bag Wars: Plastic Bag Giants Superbag and Advance Poly Split from Hilex Poly, Drop Out of Lawsuit Against ChicoBag, 13 September 2011, available on the Internet at <http://www.chicobag.com/settlement-press-release> (last accessed on 31 October 2012).

33 See Rory Harrington, “Empac denounces greenwashing after legal victory over Superfos”, Foodproductiondaily.com, 25 January 2012, available on the Internet at <http://www.foodproductiondaily.com/Packaging/Empac-denounces-greenwashing-after-legal-victoryover-Superfos> (last accessed on 31 October 2012) (“The row started in 2008 after metal packaging industry players spotted what they believed were inaccurate environmental claims made in literature from Superfos circulating at a trade show in Paris. As a result of the unrest, Empac launched legal action which, three years later, resulted in the Danish ruling highlighting the inaccurate and unsupported claims…”).

34 See id. (“The European metal packaging trade body hailed its legal victory over the Denmark-based firm, now called Superfos RPC, in the wake of a recent decision handed down by the Danish Maritime Court that statements made in its brochures and on its website about the supposed green benefi ts of plastic versus metal were misleading and unsubstantiated.”).

35 See id. (“[Jim] Hansen [secretary general for the Danish Aluminum Association, which represented Empac in the court case] stressed that organisations should take great care when making life cycle analysis claims.”).

36 See id. (“The European metal packaging trade body hailed its legal victory over the Denmark-based firm, now called Superfos RPC, in the wake of a recent decision handed down by the Danish Maritime Court that statements made in its brochures and on its website about the supposed green benefits of plastic versus metal were misleading and unsubstantiated.”).

37 See id. (“Empac has condemned the practice of greenwashing after a Danish court ruled that Superfos had breached advertising guidelines in claims that plastic packaging was more eco-friendly than metal.”).

38 See id. (“Superfos has been banned from making a series of claims and using images detrimental to metal packaging which were originally included in its website and brochures…The plastics company was not ordered to pay damages…”).

39 Id.

40 Id.

41 Id.

42 Id.

43 Id.

44 Guides for the Use of Environmental Marketing Claims (hereinafter “FTC Green Guides”) at § 260.7(a), available on the Internet at <http://www.ftc.gov/bcp/grnrule/guides980427.htm> (last accessed on 31 October 2012).

45 See id. at §§ 260.7(b) – (e).

46 See id. at § 260.2 (“The guides apply to any claim about the environmental attributes of a product, package or service in connection with the sale, offering for sale, or marketing of such product, package or service for personal, family or household use, or for commercial, institutional or industrial use.”).

47 Id. at § 260.6.

48 Supra, note 43.

49 Id.