Sustainably fashionable and fashionably sustainable

Sustainability is making a splash in the fashion industry, and many big-name brands are getting in on the action. But sustainability claims are more than just feel-good messaging, and brands seeking to tout their green bona fides must do so thoughtfully to avoid liability for making deceptive or misleading marketing claims.

A growing class of socially conscious fashion consumers is concerned with how their consumption and shopping habits affect the planet and its inhabitants. High‑profile social media campaigns, an influx of trend-setting sustainable fashion brands, and the increasing availability of corporate sustainability data have fuelled the demand for sustainable fashion. Apparel companies are integrating sustainability into their operations and products by sourcing sustainable materials, reducing GHG emissions throughout their supply chains, and conserving water in textile production.

Fashion brands naturally want to share their efforts with consumers to capitalize on their good work and to distinguish themselves from their competitors. Doing so requires caution, though, especially with respect to general environmental marketing claims or the use of such terms as “natural,” “organic,” “upcycled,” and “sustainable,” to avoid running afoul of guidance from the US Federal Trade Commission (FTC).

The FTC first promulgated the Environmental Marketing Guides (the so-called Green Guides) in 1992 to help companies avoid making misleading or deceptive claims of eco-friendliness and safety. The FTC has updated the Green Guides several times, with the most recent update hitting the rack in 2012. The Green Guides are now sewn into the fabric of marketing regulations, and the FTC expects marketers to use the Green Guides to ensure that environmental claims about their products are truthful and do not mislead consumers. Such claims must be supported by reliable and competent evidence, and they must be clear and specific enough not to confuse consumers. The FTC looks to the Green Guides to enforce the FTC Act and its prohibitions on unfair or deceptive practices.

Claims like “organic,” “natural,” and “sustainable” can be particularly problematic because they lack clarity in many contexts. The Green Guides do not define them. Companies wanting to tell the world about their natural materials and other sustainable practices will find only limited official guidance but face potentially significant legal risks. And pressure over these claims is mounting, with the FTC, advocacy groups, activists, and even industry competitors calling for greater transparency into how brands use these terms and how regulators are interpreting them. These considerations will loom large in 2022, when the FTC is next is scheduled to review the Green Guides again. The FTC’s resultant specific guidance on natural, organic, and sustainable is expected to help consumers identify truly sustainable brands and safeguard revenues for companies that have spent significant resources to build commercial relationships and adopt processes to source and sell natural, organic, and sustainable clothing.

In the meantime, fashion brands are relying on third-party certifications. For instance, the Global Organic Textiles Standard (GOTS) issues certificates to textile suppliers based on on-site inspections and certifications of entire textile supply chains. Garments and textiles may not refer to National Organic Program certification or carry the USDA Organic seal, which are for agricultural products only. And garments and textiles often include non-agricultural products such as dyes and auxiliary agents that further muddy the waters. In the absence of federal certifications, the GOTS organic certification is widely used. But the FTC has not yet issued clear guidance on whether private standards and third-party certifications such as GOTS may be recognized in the absence of government organic textile standards.

Until the market has clarity on the use of specific marketing claims in garments and textiles, fashion brands should consider FTC’s warning against making broad environmental claims or greenwashing.

To avoid FTC scrutiny, fashion brands and retailers looking to provide sustainable products to consumers should consider measures like the following:

• Avoid marketing claims with terms such as “environmentally friendly” or “eco-friendly,” because consumers have difficulty interpreting these general environmental benefit claims
• Avoid marketing claims that overstate a product’s environmental benefit or suggest that the product has no negative environmental impacts
• Use clear qualifying language that limits a marketing claim to a specific benefit
• Clearly identify for the consumer whether an environmental marketing claim refers to the product, the product’s packaging, a service, or a portion of the product, packaging, or service
• Limit the use of words like “organic,” “natural,” and “sustainable” to when the textile or garment has been certified by a globally accepted third-party certification provider and
• Disclose on the company’s website a policy detailing the company’s processes for verifying and supporting the marketing claims.

Fashion companies making green or environmental marketing claims should carefully read the Green Guides and watch for the 2022 update to understand the risks and benefits of using terms like “natural,” “organic,” “upcycle,” or “sustainable.”

For additional information on this and related subjects, contact the authors or your usual DLA Piper relationship lawyer.