Being Green is Hot—but Beware 'My Turn' in the Burlington Free Press

There is a renewed consensus that Vermont's "green" brand is an asset to the Vermont economy. The traditional business trade associations are telling their members what some other businesses, such as Seventh Generation, Ben & Jerry's, Gardener's Supply Co., Green Mountain Power and numerous other agricultural and food product brands, have known for many years—being green is good for business.

However, in the zeal to capture a perceived new market advantage, Vermont businesses need to be careful. In this evolving green marketplace lies legal risk, along with the potential to harm Vermont's green brand that has served the state so well.

Many consumers have become informed about green claims such as recycled, biodegradable, natural and organic. Recently, the call for action to address global warming has led manufacturers and service providers to add new terms to their marketing, such as "carbon neutral" and "carbon offsets." In announcing the administration's climate plan in December, even Gov. Douglas suggested the potential for the state of Vermont to enter the carbon offset marketplace with a "Vermont Green Standard."

The Federal Trade Commission (FTC) is the federal agency responsible for protecting consumers by ensuring business claims do not mislead. The FTC, in response to increased business claims and apparently a potential for consumer confusion, announced in December it will be exploring options to update its regulations pertaining to "green" business claims.

Known as the "green guide" the FTC's regulations provide guidance on how companies may communicate to consumers product and service performance on the use of recycled materials, biodegradables or organics. Earlier this month, the FTC held the first in a series of hearings with consumers, business and industry groups to sort out what it means to be carbon neutral, among other increasingly common claims that resonate with consumers' concerns over climate change. The FTC will also evaluate whether existing rules regulating "green" designations adopted in 1998 are even useful and cost-effective for consumers and business.

Considering existing law and the potential for new regulatory oversight, it is essential for Vermont businesses that currently rely on and harness Vermont's green brand to ensure that the green claims made by them and others are accurate and supportable. Moreover, any business considering simply hopping on to the "green" marketing bandwagon should recognize that doing so has some considerable risks. According to the FTC's existing regulations, businesses must consider: Is the claim sufficiently specific? Can you back up or substantiate the claim? Is the claim potentially deceptive?

The growth in consumer concern about climate change and the environment is a positive trend for the planet, and most likely a positive trend for Vermont businesses already in the green marketplace. Existing businesses or new businesses considering taking steps to improve environmental performance and reduce greenhouse gas emissions ought to be welcomed and supported. The bottom line is that for green-branding to become a meaningful and lasting advantage, it has to be real.

Brian Dunkiel of Burlington is an attorney at Shems Dunkiel Kassel & Saunders PLLC. He serves on the board of directors of Vermont Businesses for Social Responsibility.