With increased concerns surrounding climate change and the environmental impact of businesses, consumers are more socially and environmentally conscious in their purchasing decisions. Companies have identified the requirement to become, or at least seemingly become, sustainable in their processes. This approach appeals to environmentally-minded customers and will increase the likelihood of purchase. The development and overall advertising of products and services with a strong focus on environmental sustainability is called “green marketing”.

Green marketing presents an exciting opportunity for manufacturers and consumers. Both parties can keep an eye out for new innovative products which positively contribute to environmental protection whilst satisfying a need of the consumer.

However, this opportunity opens the door for “green washing”. It refers to companies conveying deceptive and misleading information surrounding how sustainable a product or service truly is. Understandably, strict laws and regulations impact a business’ trade marks and trade practices and what representations can be made by those businesses.

Here are our top five tips to ensure your practices comply with the current laws and regulations surrounding green marketing.

Exercise great caution when making environmental claims

Companies must take great discretion when asserting environmental claims. Firstly, the ecological claim itself must be substantiated. We recommend that the claim contains clear and detailed language to avoid ambiguity. For example, the ACCC has established that “green”, “sustainable”, or “environmentally friendly” are too vague. It is best to be transparent as possible regarding the benefits of the product or service. Where there is an environmental certification, it is essential that you do not misrepresent the overall significance of the certification acquired.

Without proper consideration, there may be a breach of relevant consumer laws. Misleading and deceptive conduct is prohibited under section 18 of the Australian Consumer Law. Similarly, misleading representations surrounding goods or services are not permitted under section 29. This includes marketing products as recyclable or biodegradable without substantive evidence supporting this assertion. 

Check brands and packaging for legal clearance before launch

You should ensure that green marketing initiatives do not infringe on another registered or unregistered brand and do not constitute misleading conduct. A proper search for similar registered or common law trade marks can prevent resources from being spent on legal action. It is therefore better to engage legal services to provide certainty about the lawfulness of the marketing initiatives to avert future expenses. Take Visy’s slogan “for a better world”. If a business were to incorporate this slogan to advertise their product, it would infringe on Visy’s trade mark. This would result in litigious consequences which could have been avoided with proper clearance.

Review the ACCC’s Green Marketing Guidelines

The ACCC is a regulatory body that acts as a watchdog for consumers. The ACCC has determined that for 2023/2024 it will be focussing and taking action against companies who are publishing misleading sustainability and environmental claims.

Accordingly, businesses should review the ACCC’s general guidance about strategies to avoid misleading and deceptive claims and be clear on what the ACCC believes is lawful green marketing to avoid making claims outside the scope of consumer protection laws.

Businesses should be aware that the ACCC’s powers extend to requesting evidence for these claims. For example, they may request scientific reports, certification, or supply chain information. Where they believe a claim is misleading, they can investigate and take the relevant action to enforce the regulations.

Think outside the box when formulating your brand

We highly recommended selecting distinct and dissimilar words when creating and developing your brand. This process can include making up words or not even necessarily using environmentally connoted words in the name. The more individualised and identifiable your brand is, the more likely it is to be protected as a registered trade mark. Consequently, it is easier to enforce as a registered trade mark against others. However, you should note that a registered trade mark has limited enforceability against another existing registration with similar characteristics. When considering the green branding of your product, you won’t be able to get registration for anything that describes the product or what it does. A strong brand doesn’t need to say what it does on the box.

Seek assistance from an expert

As discussed above, a poorly researched and legally risky brand is one of a business’s most significant liabilities. It is best to seek advice from lawyers with relevant expertise to avoid the risk of accidentally straying into litigious territory or breaching the law.

Whether it be merely advice on packaging prior to launch or clarifying legislation, the engagement of a legal professional will help prevent much more expensive consequences down the line.  Advice on your brand before you launch could help you avoid enforcement action from the ACCC or litigation from a registered trade mark owner.

mdp has extensive experience in advising on trade mark and intellectual property matters. From selection to commercialisation, we can help you with each step of launching your brand.

It is a positive trend to see businesses proactively implementing more sustainable practices to deliver more environmentally friendly products and services. However, there is substantial room for error when making “green” claims. Accordingly, it is always best to consult legal professionals to guarantee that your branding and marketing initiatives reach their full potential without creating adverse liability.