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Kelley Drye’s Advertising and Marketing practice group helps clients communicate their products’ environmental and health benefits while staying within the legal boundaries that govern such green marketing claims. We advise and build strategies for green marketing campaigns that advance directly toward your marketing goals without becoming entangled in the complex and ever-evolving regulatory framework. This includes a comprehensive review of your advertising and promotional materials to ensure that your environmental claims can be substantiated scientifically and attract loyal customers while avoiding inadvertent misrepresentations. We review clients’ green marketing campaigns to ensure they comply with the “Guides for the Use of Environmental Marketing Claims” (the “Green Guides”) and existing laws and policies established by the Federal Trade Commission (FTC) and self-regulatory bodies. With the FTC final revisions to environmental marketing policies in place, Kelley Drye helps clients interpret these changes to the Green Guides, assess their impact of new requirements, and modify marketing programs accordingly. The firm works regularly with business-to-business and business-to-consumer entities engaged in green advertising and marketing practices, including trade associations, national advertisers, direct marketers, consumer product retailers, distributors and manufacturers.
Kelley Drye's green marketing services include:
- Legalities of Green Branding – We advise clients on making truthful and non-misleading claims relating to: green seals and logos; recyclable and recycled products; sustainability initiatives; organic textiles and food products; natural, carbon neutral, renewable, or chemical-free products; third-party certification; green buildings and building products; green packaging products; and other environmental attributes.
- Making the Move to Green – Our attorneys develop practical strategies to help companies "go green" by interpreting existing environmental marketing guidelines and policies and anticipating future regulatory changes in order to make new or existing green initiatives progress smoothly.
- Regulatory Representation – Kelley Drye lawyers counsel clients on regulatory compliance with the FTC and related federal and state government agencies, self-regulatory bodies, including the National Advertising Division (NAD) and Environmental Remediation Sciences Program (ERSP) and industry guidelines. We help clients develop reliable substantiation to support product and advertising claims, so they can avoid risk of enforcement action.
- Compliance and Counseling – We prepare and file comments on proposed rulemakings with the FTC, review carbon offset programs, advise on the appropriate use of SPI Resin Identification Codes and counsel on California's Proposition 65 warning label requirements, among other compliance advice.
Kelley Drye's Advertising and Marketing lawyers work directly with the firm's Environmental Law and Government Relations practice areas to monitor regulatory developments relating to climate change issues at the local, state, federal and international levels. By combining specific green marketing advertising experience with the Environmental Law practice's technical capabilities and the Government Relations practice's legislative insights, the firm provides clients with the broad perspective needed to implement successful environmental marketing strategies in today's dynamic regulatory context.
- Represented a major retailer in settlement with the FTC regarding the Textile Act and references to bamboo fibers. Citing an infrequently-used provision of the FTC Act, the FTC relied on a synopsis of previous cases to seek civil penalties.
- Represented a Fortune 500 paint company in a settlement with the FTC regarding green marketing claims of zero volatile organic compounds (VOCs) in some of their paint products.
- Represented a drugstore retailer and its wholly owned subsidiary in relation to complex negotiations with FTC staff to close an investigation, ending a potential enforcement action. The inquiry focused on substantiation for express and implied claims that its plastic trash bags were degradable, recyclable, and made with recycled content.
- Obtained a closing letter for an FTC investigation into the environmental advertising claims of a construction materials company.
- Represented a leading manufacturer and marketer of building products in an investigation by the FTC concerning its advertising for fiberglass building insulation products.
FTC Green Guides
- Worked with a large food and beverage trade association to prepare comments concerning possible revisions to the FTC’s Guides for the Use of Environmental Marketing Claims (“the Green Guides”). The comments focused on claims relating to the following issues: renewable energy, carbon offsets, renewable energy certificates, carbon neutrality, carbon footprint, sustainability, life cycle assessments, seals, logos, third party certifications and source reduction claims.
- Represented a consumer products company in an NAD challenge involving green claims for cleaning products.
- On behalf of a Fortune 50 technology company, successfully challenged a competitor’s claim that they sell the “world’s greenest notebooks.”
- Represented a plastics manufacturer in a challenge before the NAD relating to bio-degradability and recyclability claims.