Top ten tips for avoiding greenwashing in your marketing and promotional material

By Gabrielle Stannus

If you are thinking about marketing and promoting the environmental benefits of your products, be very careful with the language you use. The Australian Competition and Consumer Commission’s (ACCC) recent case against Woolworth’s shows that it will not tolerate misleading or deceptive conduct in this area. We share the ACCC’s top tips for businesses on how to avoid potential greenwashing.

Our industry prides itself on our commitment to liveable cities, healthy environments and food security. We produce and supply a wide range of products to help us meet these goals, including plants, growing media, potting mixes, fertilisers and chemicals, irrigation and watering aids and packaging. Making environmental claims about these products is part and parcel of our everyday marketing work. However, in order to avoid being penalised under the Australian Consumer Law, we must be very careful that those claims do not mislead consumers, i.e. are not considered ‘greenwashing’.

Over the last decade, manufacturers of plastic bags, washing machines, eggs and drinking water have all been penalised for misleading and deceptive conduct and/or making false representations concerning the environmental benefits that their products provide. More recently, the ACCC has alleged that the Woolworths supermarket chain made false or misleading claims about its ‘W Select eco line’ range of disposable plates, bowls and cutlery which were labelled “biodegradable and compostable”.

“Businesses are prohibited in making false or misleading statements about their products under the Australian Consumer Law. If a business wishes to make environmental claims about their products, the claims should be honest, accurate and able to be substantiated. Businesses should clearly explain, in simple language, the significance of the benefit to the environment. Broad or unqualified claims can be risky as they are ambiguous and do not explain any specific environmental benefit,” said an ACCC spokesperson when contacted for comment.

Australian Consumer Law
Businesses trading in Australia and selling to Australians are bound by the Australian Consumer Law introduced in 2011 and found in Schedule 2 of the Competition and Consumer Act (2010). The Australian Consumer Law has two main provisions affecting the way you make environmental claims: Misleading and deceptive conduct; and false or misleading representations.

Misleading and deceptive conduct
If your conduct was likely to mislead or deceive the consumer, then the Australian Consumer Law is contravened. It does not matter whether your conduct actually misled anyone or whether you or your business intended to mislead.

False or misleading representations
The Australian Consumer Law also requires that you not falsely represent goods as being of a particular standard, quality, value, grade, composition, style or model or having a particular history or previous use. In addition, you must not represent your goods or services as having sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have.

Penalties
A recent change to the Australian Consumer Law includes increased maximum penalties for a breach of the law. The maximum penalties per breach of the Australian Consumer Law including unconscionable conduct, making false or misleading representations, and supplying consumer goods or certain services that do not comply with safety standards or which are banned:

For corporations, will be the greater of:
  • $10 000 000
  • Three times the value of the benefit received, or
  • 10% of annual turnover in preceding 12 months, if court cannot determine benefit obtained from the offence.
For individuals:
  • $500 000.
Top ten tips for avoiding greenwashing in your marketing and promotional material
Earth friendly, non-toxic, certified green, chemical free, bio, natural, eco, Environmentally friendly, environmentally safe, planet safe or green, energy efficient, carbon neutral … and so on.

Are any of these the right phrases to use in your next marketing campaign? Check out some important advice from the ACCC below.

If making claims about your products’ environmental benefits in marketing and promotional material, the ACCC says those claims:

  1. Must be accurate
  2. Must be able to be substantiated
  3. Should be specific, not unqualified and/or general statements
  4. Should be in plain language
  5. Should only be made for a real benefit
  6. Must not overstate a benefit
  7. Should make it clear whether claimed benefits refer to packaging or content
  8. Should consider the whole product life cycle
  9. If using endorsement or certification should be used with caution
  10. Should not overstate the level of scientific acceptance 1

NB. This applies not only to the text used in your marketing and promotional materials, but also to pictures.

Retail nurseries
The Australian Consumer Law therefore provides a basic set of guarantees for consumers who acquire goods and services from Australian suppliers, importers or manufacturers. Therefore, retailers also need to be very careful when marketing or promoting the environmental benefits of the goods they sell, even if they did not produce or package those items themselves. Think carefully before you develop posters spruiking the environmental benefits of the products on display in your retail nursery or when advertising them online. Does the wording on those materials comply with the tips above? If not, you may be misleading your customers.

Need help?
If you need further advice on this matter, please contact the ACCC’s Infocentre on 1300 302 502 or make an enquiry via its website.

Postscript
In August 2019, the ACCC lodged an appeal against the Federal Court’s decision to dismiss its case against Woolworths relating to the environmental claims Woolworths made about their ‘W Select eco’ picnic products. The appeal is currently before the Court. Updates as to timing and court location can be found on the matter’s Commonwealth Courts portal.

References
1. Australian Competition and Consumer Commission (ACCC) 2011, Green marketing and the Australian Consumer Law, page 7

Further reading
Green marketing and the Australian Consumer Law: https://www.accc.gov.au/system/files/Green%20marketing%20and%20the%20ACL.pdf

ACCC Advertising and Selling Guide: https://www.accc.gov.au/publications/advertising-selling/advertising-and-selling-guide

General information on environmental claims can be found here (within the ACCC advertising and selling guide): https://www.accc.gov.au/publications/advertising-selling/advertising-and-selling-guide/marketing-claims-that-require-extra-care-premium-and-credence-claims/environmental-and-organic-claims

Australian Consumer and Competition Commission (ACCC) 2010, Biodegradable, degradable and recyclable claims on plastic bags, https://www.accc.gov.au/system/files/Biodegradable%2C%20degradable%20and%20recyclable%20claims%20on%20plastic%20bags.pdf