From consumer goods to cutting-edge industries like blockchain and crypto, consumers want more environmentally-friendly solutions. And advertisers, in response, are rushing to tout their sustainability-focused corporate missions and product solutions. In recent decisions, Butterball, Georgia-Pacific, and Everlane, the National Advertising Division (NAD) of BBB National Programs provided useful and detailed guidance on how advertisers can support sustainability claims and avoid making unqualified general environmental benefit claims that could mislead consumers. In addition to marketing lawyers, brand owners and trademark counsel alike should also be on the lookout for overreaching environmental marketing claims.
It has long been a fundamental tenet of advertising law that comments made to investors, and particularly those made before the commercial launch of a product or service, do not constitute the kind of “advertising” that is regulated by the Federal Trade Commission (FTC) or the National Advertising Division of the Better Business Bureau (NAD), and are outside the reach of the Lanham Act. That is because advertising law regulates communications that propose a commercial transaction; in contrast, the securities laws govern communications to investors that are designed to promote investments. A recent decision from the NAD has put a big crack in that jurisdictional wall, and threatens to breach the dam that has long shielded comments made in investor presentations from potential liability for false advertising.