Monday last week was the closing date for the Federal Trade Commission’s comment period, ahead of its meeting this month to decide what changes should be made to the existing “Green Guides,” the list of rules revised three times since it was published in 1992 regarding what claims can and can’t be made then companies advertise their sustainability credentials.
This first update since 2012 is a long time coming, and one made more urgent by a slew of class-action greenwashing lawsuits winding through the courts.
In its 8-page comment to the FTC, American Apparel and Footwear Association CEO Steve Lamar said some companies are now “greenhushing,” or under-reporting their sustainability efforts because they are gun-shy about being labeled greenwashers and taken to court.
“While inaccurate or insufficiently substantiated claims mislead consumers about the impacts of the products they chose to buy, a lack of information makes every product appear to have equal impact, frustrating consumers’ ability to make the kinds of choices they clearly want to make,” Lamar wrote.
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Another pressure point facing the FTC is what to do with the term “sustainability,” which in recent years has become a household word, but does not appear anywhere in the 2012 Green Guides and does not have a consensus definition.
The term is first believed to be used in this context in a 1987 United Nations report, defined as “Development that meets the needs of the present without compromising the ability of future generations to meet their own needs.”
In his letter, Lamar suggested criteria for sustainability claims.
“The claim does does not imply the product or product component are wholly environmentally sustainable; AND A statement immediately precedes or follows the environmentally ‘sustainable’ claim that includes specific information about the environmental impact(s) that underly the ‘sustainable’ claim,” Lamar wrote.
These caveats, if enacted, would dampen the impact of the word “sustainable,” but also encourage companies to promote the good environmental things they do without fear of reprisal.
Detailing the sustainable thing an advertiser is talking about, Lamar said, would reduce the vague usage of the “catch-all” term.
The AAFA chief also recommended the FTC address apply the two-step criteria to the words “circular,” “biodiverse,” and “regenerative,” which, like sustainable, have specific meanings, but easily become eco-marketing buzzwords.
A trio of social justice-minded academics—Sandra Gonza, Kenya Wiley and Corneil Montgomery—touched on many of the issues Lamar did in the AAFA’s letter, but added cultural and racial considerations.
Quoting commissioner Rebecca Kelly Slaughter’s comments that the FTC’s mission must examine how “commercial practices affect the marginalized and vulnerable,” the trio noted “regenerative” as a word ought to include references to its ties to indigenous cultures.
“We recommend that the Commission consider elements of regenerative to include: acknowledging the Indigenous roots of regenerative agriculture; improving soil health; increasing biodiversity; and providing a more holistic approach that includes a focus on humans, equity and social justice,” they wrote.
They also addressed the new greenhushing problem, but approached from a different point of view than the AAFA, an industry trade group whose members include Adidas and Gap.
“Fast fashion and other larger brands are in a better financial position to absorb the legal and PR costs with greenwashing claims,” they wrote. “That is often not the case for Black and Brown designers, fashion tech startups and other entrepreneurs that operate as small businesses — which may force them to stay silent about their sustainability solutions for fear of getting called out, and leading to what is known as ‘greenhushing.’”
The group called on the FTC to adopt the EPA’s definition of sustainability as “to create and maintain the conditions under which humans and nature can exist in productive harmony to support present and future generations.”
When the four-person FTC gathers in Washington, D.C. on May 23 to discuss changes to the Green Guides, it will also hold a workshop regarding recycling claims called “Talking Trash at the FTC: Recyclable Claims and the Green Guides.”
The AAFA letter recommended that the commission adjust the current standard of “substantial majority,” or 60 percent of a community has access to recycling. Lamar wrote that this threshold is difficult for companies to assess and unfairly leaves out more rural communities which don’t have the same recycling infrastructure as larger cities.
He pointed to hunting apparel as being an example of concern among AAFA members.
To define “recyclable” Lamar suggested international bodies such as the European Committee for Standardization, the International Standards Organization, ASTM International as models, and for claims substantiation, the European Union’s proposed Green Claims Directive.
“While not finalized, [the directive] does attempt to answer these kinds of questions,” Lamar said. “We would encourage the FTC to work closely with counterparts in the EU and seek to harmonize claim substantiation requirements.”