The concise Oxford Dictionary defines green washing as “the act of misleading consumers regarding the environmental practices of a company or the environmental benefits of a product or service”.

“Consumers’ demand for ‘green’ products has increased significantly over the past few years, this is matched by an increasing number of incidents of GreenWashing,” says Charne le Roux, a partner at the Southern hemisphere’s largest law firm Adams & Adams. Le Roux has extensive experience in the ‘green’ arena, having owned and built one of the first green spas in the country – this included green building issues, energy construction and water and waste management. The spa was the recipient of several awards.

Enviropeadia in its eco-logical edition of 2011 reports that, in America alone, one study conducted in 2009 found 98% of all green claims guilty of one or more of the seven sins of GreenWashing. le Roux says the report also revealed that 64% of the American public no longer trusts sustainability related marketing claims.

Le Roux says these sins can be summarized as hidden trade-off practices (a claim suggesting that a product is “green” based on a narrow set of attributes without bringing attention to other important environmental issues), lack of proof, vagueness, false labeling, irrelevance, a lesser of two evils (a true claim that distracts a consumer from the greater environmental impact of the whole product category e.g. organic cigarettes) and passing off.

According to le Roux, UK consumers are viewing “green products” with equal skepticism. Research by the UK Carbon Trust, revealed that just 7% of consumers take companies at their word, while 53 percent view promotions which purport to support the environment as a one-time opportunity to win publicity.

“In South Africa, a sustainability survey conducted by Ogilvy Earth SA in 2011 shows a high level of eco-awareness by SA consumers, but that only 18.3% of them trust a company’s ‘green’ credentials.”

le Roux says this distrust is bound to have come from unsubstantiated and false claims (GreenWashing) and practices that are undoubtedly a threat to all honest producers and retailers, but mostly to consumers who genuinely want to make a difference through their purchasing decisions.

But what are the requirements for “green” or sustainable products and is the use of “green” indications on products regulated in terms of our law, with sanctions for non-compliance?

In the food industry, the Department of Health recently published new Labeling and Advertising of Foodstuffs Regulations which came into effect in March and which are regulations to the Foodstuffs, Cosmetics and Disinfectants Act.

In terms of the new regulations, a foodstuff may not be advertised in any manner “which contains any information, claim, reference or declaration” that is not permitted in accordance with these regulations.

le Roux, who was assisted in her research by Rene Viljoen, also of Adams & Adams, says the Act also deals with misleading descriptions, and provides specifically that labeling descriptions that indicate a more humane treatment/rearing of animals or convey a message that the product is healthier or additive free, free range, organic, pure etc. will only be permitted if they are linked to a specific protocol which is registered with either the Department of Agriculture, or in terms of the Regulations of the Agriculture Products Standards Act, or in terms of the National Regulator of Compulsory Specifications Act.

“The Regulations provide further that descriptions such as “fresh”, “natural”, “pure”, “home-made”, “premium”, “finest”, “quality” and “hand-made” and that are not regulated as aforesaid, shall only be permitted if they are compliant with the criteria stipulated in a specific Guideline

“Upon investigation, we found that many of the terms commonly encountered on food packaging, such as “free range”, “organic”, “pure” and the like are, despite reference to them in the Regulations, not meaningfully dealt in terms of the referenced protocols or the Guideline. Also, the search for information pertaining to these descriptions that are regulated, is a laborious effort of checking and cross-checking various statutes, their associated regulations and also Gazetted Notices.

“This is a task that lies beyond the means of ordinary members of the public,” says Le Roux.

To make matters more complicated, the regulated terms often only apply to a small section of food products. For example, the term “free range”, which is a description regulated in terms of a protocol, is, at this stage, only regulated in relation to eggs and the criteria to use it to label eggs are that the chickens should have continuous daytime access to open air runs and should also be able to scratch and dust bath. Their roaming space should also be big enough to allow for ample running space.

“The use and regulation of the term “organic”, which is defined as a protocol regulated description, requires specific mention because it appears on a significant selection of health foods,” says le Roux.

According to Niel Erasmus at the Department of Agriculture, the publication of the regulations for organically produced products has met technical difficulties and will not be published until the Agriculture Products Standards Act is amended first. He advises that there is legislation in place that prohibits misleading claims, but according to le Roux, it will be difficult to establish if an organic claim is, in fact, misleading if there are no guidelines.

In the UK, foods that are sold as “organic” must be produced according to European laws on organic production. These laws require that all growers, processors and importers who grow or sell food items that are labeled “organic” must be registered with organic certification bodies and their products certified by them through a thorough investigative process. These certification bodies are, in turn, registered by the Department for Environment, Food and Rural Affairs (Defra) and other similar control bodies in the European Union. Food sold as “organic” must also reflect the organic certification body and the labels must, at the minimum, include a code number that denotes the approved certification body. Similar provisions apply in the US.

“In the absence of formal regulation in South Africa of the use of the word “organic” on foodstuffs and other products, it would appear that any product can be so labeled and that it would be up to the consumer, or a competitor, to argue that the claim is misleading,” says Le Roux. She suggests that a possible solution in dealing with the use of the term “organic” pending formal regulation could be to rely on the fact that the SA organic food industry is already well established here, that consumers have come to have an expectation that all organic claims are supported by certification (in line with the EU and US principles dealing with the use of this term) and that, concomitantly, in the absence of such certification, an organic claim would be misleading.

But what about the use of terms such as, “environmentally friendly”, “eco”, “fair trade”, “biodynamic”, “carbon neutral”, “energy efficient”, “water friendly” and even just “green”? The use of these descriptions is not regulated by legislation, although some are regulated by industry watchdogs (such as the Advertising Standards Authority), and certification agencies e.g. The Carbon Neutral Company, the Biodynamic and Organic Certification Association and Fair Trade International. The regulation of the term “fair trade”, (a term that denotes a movement that advocates improved trading conditions for marginalized workers and manufacturers and strives for better market access for small procedures), is mostly by Fairtrade International (in Africa the member organization is Fairtrade Africa which operates in South Africa through a regional network) who monitors producers and traders who claim that products are fair trade.

“The Advertising Standards Authority (ASA), which governs all advertisements - advertisement are broadly defined as any visual or aural communication, representation, reference or notification which is intended to promote the sale or use of goods or services - deals specifically with the use of environmental claims in advertisements. Environmental claims are also defined as “any direct or indirect claim, representation, reference or indication in an advertisement relating to the immediate or future impact or influence on the environment of a product or its packaging or a service. Absolute environmental claims , such as “…free” or “contains no…” are all subject to substantiation. The Code also dictates that environmental signs or symbols should indicate their source and should not imply official approval,” according to le Roux.

The ASA has already made some rulings regarding use of the terms “natural” and “environmentally friendly”. In a matter involving Crammix and CMA there were two issues before the ASA, firstly use of the wording – “one of the most environmentally friendly and energy efficient masonry materials known to man” and, secondly, the use of an “environmentally friendly” self derived logo on the advertising materials complained of.

“The ASA held that the environmental claim may not be used unless the claim is qualified by a description of the benefit conferred by the claim. It also held, in connection with the “environmentally friendly” logo, that any such sign or symbol used in advertising should clearly indicate its source and may not imply official approval. The ASA felt that the specific logo complained of left the impression of official approval by an accredited independent body similar to the SABS and ordered against its further use.”

In another matter before the ASA, the use of the term “natural” was addressed. The matter concerned Johnson & Johnson’s use of the term “natural” on its soaps. The ASA considered previous rulings where an expert opinion was obtained from the CFTA (Cosmetics, Toiletry and Fragrance Association). The CFTA was of the opinion that consumers are not led to believe, by a trade mark alone (in this case, the word “natural” was used in the form of the brand name PALMOLIVE NATURALS), that a product is wholly natural, but that the use of wording such as “natural” and “naturally” elsewhere on the packaging would mislead consumers to think that the product is of natural origin. The ASA accepted this opinion and distinguished in its decision between the use of the term “natural” in the brand name (e.g. Dettol Natural Soothing Soap) and use on the packaging of the product. “Consequently,” asserts le Roux, “the reference to “natural” on packaging may be considered misleading if the use extends beyond the brand name of the product and implies that the product is natural.”

“The Foodstuffs, Cosmetics and Disinfectants Act also plays an important part in dealing with misleading claims. It provides that any person shall be guilty of an offence if any foodstuff is described in a false or misleading manner with regards to its origin, nature, substance, composition, quality, strength, nutritive value or mode or place of manufacture.

“In terms of the same Act, any person who is convicted on this basis shall be liable, on a first conviction, for a fine, alternatively imprisonment for a period not exceeding six months, on a second conviction, for a fine, or alternatively imprisonment for a period not exceeding 12 months and on a third or subsequent conviction, for a fine or imprisonment (or both) for a period not exceeding 24 months.”

le Roux says there is of course also the Consumer Protection Act to rely on if green claims seem too good to be true, or are simply vague and unsubstantiated. This Act prohibits any misleading trade descriptions that are direct or indirect indications of the ingredients, materials, and mode of manufacturing or production of products.

In the end it would appear that although there is protection against the use of misleading environmental claims in general, there are very few guidelines about how specific words or trade descriptions should be used. Consequently, much policing will be left to the consumers of green products to ensure that they are indeed as good for their health, and that of the environment, as claimed.

Written by Charne le Roux, Partner at Adams & Adams