By: Amanda Sklar
Published On: February 1, 2024
With extensive Shein hauls being in vogue, it is not terribly surprising that the fashion industry is one of the largest polluters. Producing 10% of humanity’s carbon emissions, drying up water sources, and resulting in 85% of textiles ending up in landfills each year[1], the fashion industry’s consumption levels are “seam”ingly endless. What’s more is that washing synthetic fabrics can cause microplastics to end up in the water[2], and the longevity of some types of synthetic clothes pales in comparison to natural fibers, such as leather and wool.[3]
Many fashion companies, ranging from fast-fashion (companies that mass-produce trends at a low cost and bring them to retail stores quickly) big names like H&M to loud luxury houses like Gucci, have started to market their products in ways that might appear to consumers as more environmentally friendly.[4] Unfortunately, many of these rebranding efforts are only fabric deep.[5] These threadbare efforts have resulted in “greenwashing,” a term used to describe when goods or services are marketed as environmentally friendly without actually being so.[6] In H&M’s case specifically, the garments supplied for its “conscious collection” in some cases use more water to produce than their regular garments.[7]
Following the EU and UK,[8] some states like California consider adding Greenwashing laws to the books. But the U.S.’s main source of regulation on the issue comes from a collection of “recommendations” put out by the FTC called the “Green Guides.”[9] The Green Guides include: (1) general principles that apply to all environmental marketing claims; (2) how consumers are likely to interpret particular claims and how marketers can substantiate these claims; and (3) how marketers can qualify their claims to avoid deceiving consumers.[10] However, the Green Guides are neither enforceable nor rigid in their definitions and principles, which leads to only sew-sew outcomes for sustainability.[11]
Without being enforceable, the Green Guides are difficult to use meaningfully.[12] If a green claim is inconsistent with the Green Guides, the FTC may act if it is believed that all reasonable interpretations of the claim are false, misleading, or unsupported by reasonable bias.[13] This could ultimately lead to a fine for a company found to be in violation of the Green Guides.[14] However, the FTC did not file a single case against corporate greenwashers in the years 2020 or 2021.[15] Additionally, in the few cases brought where the offenders received penalties, the penalty was limited to injunctive relief, which is no more than a slap on the wrist.[16] The former Commissioner of the FTC, Rohit Chopra, believes the Commission should codify this approach and that no-money settlements are inadequate. Chopra further argues that the Commission should commit itself to exercising its full authority to protect consumers and honest businesses.[17] Currently, there is no answer to how much money would make a money settlement adequate, and while the Green Guides themselves are not enforceable, litigants can leverage the standards set forth in them to allege deceptive advertising in green claims. Mr. Chopra was correct in his assessment — the Green Guides are inefficient and insufficient as a deterrent in their current existence as nonbinding and suggestive. From December of 2022 through April of 2023, the FTC sought public comments on potential updates and changes to the Green Guides.[18]
This past March, the European Union proposed a new Green Claims Directive. If adopted, it would create (1) strict rules on what type of evidence companies need to have to support their green claims, (2) a brand-new requirement that the claims be verified and certified by a third party before they can be used, and (3) an obligation to provide information to consumers on the green claim.[19] Additionally, several provisions in the proposed regulation are devoted to enforcement, such as requiring Member States to designate competent authorities responsible for enforcement; establish a penalty regime and ensure access to a court or other independent body to review the legality of the competent authority’s decisions.[20] While the U.S. does not yet have even definitions for “green” terms such as “sustainable” or “eco-friendly,”[21] these would be significantly helpful steps for the US to take as well. Hopefully with an updated version of the Guides, green will be the new black.
[1] The Environmental Cost of Fashion, Geneva Environment Network, https://www.genevaenvironmentnetwork.org/resources/updates/sustainable-fashion/
[2] Id.
[3] Buffalo Jackson, Real Leather vs. Fake Leather, https://buffalojackson.com/blogs/insight/real-leather-vs-fake-leather
[4] The Fashion Law, Kering Adopts “Greenwashing” Guide Amid Rising Scrutiny, https://www.thefashionlaw.com/kering-adopts-greenwashing-guide-to-aid-brands-in-making-sustainability-claims/
[5] Id.
[6] The Fashion Law, supra note 4.
[7] Wicker, H&M Is Being Sued for Greenwashing. What Does That Mean for Fashion? (Aug. 19, 2022) https://www.thecut.com/2022/08/h-and-m-greenwashing-fashion.html#:~:text=In%20fact%2C%20she%20claims%2C%20several,(sorry)%20moment%20for%20fashion.
[8] The Fashion Law, EU Commission Releases Proposal to Cut Down on Greenwashing https://www.thefashionlaw.com/eu-commission-releases-new-proposal-to-cut-down-on-greenwashing/
[9] The Fashion Law, The Federal Trade Commission Says it Will Review its “Green Guides” in 2022 – The Fashion Law, https://www.thefashionlaw.com/the-federal-trade-commission-says-it-will-review-its-green-guides-in-2022/
[10] FED. TRADE COMM’N, Green Guides, https://www.ftc.gov/news-events/topics/truth-advertising/green-guides.
[11] Duchimaza v. Niagara Bottling, LLC, 619 F.Supp.3d 395, 395 (SDNY 2022).
[12] Gigounas et al, FTC to revise its guidance on environmental marketing as it seeks public comment on the Green Guides (Jan. 12, 2023) https://www.dlapiper.com/en-us/insights/publications/2023/01/ftc-to-revise-its-guidance-on-environmental-marketing-as-it-seeks-public-comment-on-the-green-guides (last visited Oct. 22, 2023).
[13] Monica J. Stover, Environmental Marketing Claims and the FTC’s “Revised Green Guides,” 37 MICH. ENV’T L.J. (May 14, 2020, 9:30 AM), https://connect.michbar.org/blogs/environmental-law-journal/2020/05/14/environmental-marketing-claims-and-the-ftcs-revise.
[14] Robledo, An American Dream Gone Green: A Discussion of Existing Environmental Marketing Regulations and the Need for Stricter Legislation, Touro L. Rev. 2022.
[15] FED. TRADE COMM’N, Statement of Commissioner Rohit Chopra (Sept. 19, 2019), https://www.ftc.gov/system/files/documents/public_statements/1544655/commisisoner_rohit_chopra_statement_on_truly_organic_sept_19_2019.pdf.
[16] Id.
[17] Id.
[18] FED. TRADE COMM’N, Federal Trade Commission Extends Public Comment Period on Potential Updates to its Green Guides for the Use of Environmental Marketing Claims (Jan. 31, 2023) https://www.ftc.gov/news-events/news/press-releases/2023/01/federal-trade-commission-extends-public-comment-period-potential-updates-its-green-guides-use (last visited Oct. 22, 2023).
[19] Bichet, Think before you claim “green”: the EU’s new Green Claims Directive, Cooley https://products.cooley.com/2023/03/24/think-before-you-claim-green-the-eus-new-green-claims-directive/ (last visited Oct. 22, 2023).
[20] Perkins Coie, Sustainability Advertising: Key Takeaways, https://www.perkinscoie.com/en/news-insights/ftc-green-guides.html (last visited November 3, 2023).
[21] Id.