James A. Kosch, Esq, LeClairRyan05.22.14
Type “biodegradable beauty products” into your web browser and Google will spit out more than 1 million hits in less than half a second—a testament to the popularity of green marketing in the beauty sector.
Pardon the pun, but this is only natural. After all, when consumers are putting products directly on their skin or in their hair, they have a tendency to look for the gentlest options.
When these shoppers see terms such as “biodegradable” or “organic” on a package, they are more likely to consciously or unconsciously associate these products with attributes such as “safe” and “non-toxic.”
But while using terms like “biodegradable” can boost sales, today’s tough regulatory environment makes this practice risky to say the least.
Last October, the U.S. Federal Trade Commission (FTC) announced six enforcement actions in response to the marketing of plastic bags, golf tees, storage containers and the like as biodegradable, with civil penalties running as high as $450,000. While the FTC has yet to go after beauty products on similar grounds, it could do so at any time.
The lack of hard-and-fast regulations on such claims is a big part of this risk profile: The government has made its intentions known only through its so-called Green Guides—less formal guidelines that give regulators broad latitude on enforcement and can leave companies scratching their heads about what it truly takes to comply with the sometimes-confusing guidelines.
Meanwhile, beauty products manufacturers also face potential liability risk from state regulations and/or private civil suits.
Back in 2011, an environmental group announced that it had reached legal agreements with 11 producers of nationally marketed hair-care and other personal-care products that had been marketed as “organic.” These legal agreements were the first-ever lawsuits settled under the California Organic Production Act.
Likewise, one California citizen started a class-action lawsuit in 2012 over the packaging and marketing of P&G’s Olay Regenerist. Her beef was with the alleged lack of efficacy of the product, but any eco-minded consumer could file a similar class action over green claims.
What, then, should marketers do to reduce risk?
The key is to stick to the facts. If you have replaced a chemical with an herb, you can state this without making any claims about the effects on health or beauty.
If your company has moved into a new headquarters with a platinum-level LEED certification, this is an indisputable fact. It can be shared.
This is a far cry from a marketing message along the lines of: “ACME Facial Cream makes you beautiful again—and its biodegradable packaging is beautiful for nature, too.”
Little wonder that when it comes to making broad environmental claims, more companies are sticking to the facts and following advice Mark Twain once gave to aspiring writers: “If you can catch an adjective, kill it.”
