•  
  •  
 

Abstract

As more consumers become informed about climate change and their own environmental impact, more businesses begin to market their products as “green,” “eco-friendly,” or “sustainable.” However, not all products marketed as environmentally friendly1 actually are; greenwashing, the deceptive marketing practices that misrepresent or exaggerate a product’s or service’s environmental benefits, is on the rise. Imagine a consumer chooses to buy a new outfit from their favorite brand’s “sustainable” line. They forego other options because they believe their choice will support the brand’s apparent efforts to conserve water and reduce their carbon footprint. Then, the consumer later finds out that the new “sustainable” line is not significantly more sustainable than their other lines, contrary to their initial impression. How can this consumer successfully make a conscious effort to support, and thereby promote, environmentally-friendly clothing production if marketing is not trustworthy?

Policymakers have attempted to protect consumers from this exact type of injury, through false advertising laws. However, lawsuits alleging greenwashing rarely succeed, and consumers rarely get justice. No existing legal framework protects consumers—the federal Lanham Act protects businesses from other businesses, individual consumers do not have standing to sue, the Federal Trade Commission’s Green Guides are nonbinding, and individual state consumer protection statutes apply an overly broad definition of a “reasonable consumer” standard that fails to account for the differences between sustainable shoppers and average shoppers.

This Note argues that greenwashing claims alleging false and misleading advertising fail because courts do not recognize the differences between sustainable shoppers and everyday shoppers, who have different reasons to choose one product over another.2 Examining federal false advertising law, the FTC’s limited enforcement authority, and recent litigation in Missouri and California state courts, this Note argues that courts routinely conflate sustainable shoppers and everyday shoppers and dismiss their false advertising claims. By deeming environmentally friendly representations as ambiguous rather than as actual deceptive practices, courts do not consider the social and behavioral factors that influence sustainable shoppers. This Note then proposes a reimagined reasonable consumer standard that considers the psychological, social, and behavioral factors that influence sustainable shoppers, given interdisciplinary research in consumer psychology and sustainable decision making. By redefining the reasonable person standard for greenwashing claims, courts can better align consumer protection laws with the realities of the marketplace, give sustainable shoppers a path to hold brands accountable, and more effectively deter deceptive marketing.

Download

Share

COinS