Can third-party certification protect against greenwashing allegations? Maybe, maybe not

During FoodNavigator-USA’s digital Futureproofing The Food System summit​, which is now available on demand​, Altson & Bird partner Rachel Lowe and senior associate Sam Jockel warn of an uptick in litigation centered on sustainability certifications and share best practices for safely sharing environmental stewardship.

“The consumer products good industry has been increasingly using environmental marketing claims to convey the benefits of various environmental attributes not just for food products, but for food packaging … and, especially over the past several years, these initiatives have come under increasing scrutiny from regulators both at the federal level and the state level for public companies, investors and for litigants, consumer class action attorneys, NGOs and competitors,” Jockel told attendees.

As scrutiny increases, Lowe says some companies are investing time and money into third-party certifications that they believe will support their claims and protect them against greenwashing allegations.

But, she warned, “sometimes they are sorely disappointed when they find themselves subject to litigation, and they really, unfortunately, are not completely left in the clear by a certification depending on how it is advertised.”

For example, she said, she has seen claims against advertisers for aquaculture practices, certification from the Rainforest Alliance, cocoa certifications and more.

Best practices for using third-party certification claims​

As such, she advised, companies need to acknowledge the risk that can still accompany the use of a certification and carefully consider how they use the certification in marketing and the reputation of the certifying body.

“If I am a brand manager at a food company and thinking about a third-party certification, my first question is going to be, well, what am I paying for? What are you proving … what vetting are they doing? How are they doing that vetting? What is their substantiation,” and has that certification been involved in a consumer class action litigation,” Jockel said.

Emerging litigation targets​

He also advised the marketing team work closely with legal teams to review claims and packaging, and companies keep an eye on ever-shifting consumer class action litigation targets and cases.

Among the “hot trends” in litigation related sustainability that Lowe and Jockel say they are tracking are:

• Recycling claims, including the chasing arrows, and the extent to which the statements are merely aspirational, protected by the First Amendment or puffery,
• The potential for PFAS and other chemicals of concern that are used in packaging or manufacturing to potentially compromise claims that a food or beverage is clean or pure, and
• Claims related to carbon offsets, biodegradability and more.

Check out on demand full presentation, Navigating the Legal Minefield of Sustainable & Environmental Market Claims, which was broadcast as part of FoodNavigator-USA’s Futureproofing The Food System digital summit. Registration for the session is free and easy​.