In the last decade, green claims in advertising have exploded as marketers continually seek to appeal to eco-conscious consumers interested in protecting the environment. In making these claims, companies must be careful to avoid "greenwashing," which is the deceptive use of marketing to promote a misleading environmentally friendly image for the company's products. Recently, a plaintiff in California brought a putative class action against Fiji Water Co. LLC (Fiji), alleging that the company engaged in greenwashing through the labeling and advertising of its bottled water. The front label of the product in question contains a green water drop symbol and the bottled water is advertised with the slogan, "Every Drop is Green." The named plaintiff, Ayana Hill, alleged that Fiji misrepresented its bottled water as environmentally superior to that of its competitors, and, in doing so, violated California's consumer protection statutes. In particular, Ms. Hill took issue with the green water drop symbol, which she alleged gave consumers the false impression that the product received an environmental seal of approval from an independent, third-party organization. A California Court of Appeals did not agree and last week dismissed Ms. Hill's claims with prejudice. The court held that the claims failed because they did not satisfy the reasonable consumer standard as expressed in the FTC's Green Guides or as used in California's consumer protection laws. In other words, "no reasonable consumer would be misled to think that the green drop on Fiji water represents a third party organization's endorsement or that Fiji water is environmentally superior to that of the competition." In reaching this decision, the court noted that the green water drop symbol bears no name or recognized logo of any group, and no indication that it is anything but a symbol of Fiji water. Moreover, the symbol appears on the back of every bottle next to the website name, "fijigreen.com," which would lead a reasonable consumer to believe that the symbol is by Fiji water, rather than a third-party organization. The FTC's Green Guides and the recent Proposed Revisions are an excellent resource for companies looking to reduce legal risk and steer clear of greenwashing. The Guides are designed to inform marketers how to avoid making environmental claims that are unfair or deceptive under Section 5 of the FTC Act and they contain numerous examples addressing different types of deception. As a matter of federal law, the guides themselves are only administrative interpretations and not enforceable regulations. However, a number of states, like California, have incorporated FTC's green guides into state laws governing unlawful environmental marketing claims. – James Speyer & Sean Hennessy
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