Unpacking greenwashing debate: Part 2

Charne le Roux

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 monitored by Fairtrade International. In Africa, the member organization is Fairtrade Africa, which operates in South Africa through a regional network.

"The Advertising Standards Authority (ASA), which governs all advertisements - 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," says Le Roux.

ASA rulings

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.

"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 trademark 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."

Food rulings

"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 about its origin, nature, substance, composition, quality, strength, nutritive value or mode or place of manufacture," continues Le Roux.

"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.

Buyer beware

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.