Greenwashing 2.0 Published

I’m pleased to announce that my article – Greenwashing 2.0 - was published at the end of September in the Columbia Journal of Environmental Law (CJEL).  The current issue of CJEL can be found here.

In this piece, I argue that discussions of greenwashing are unduly restricted to cases in which an individual consumer, a class of consumers, or a consumer watchdog such as the FTC challenges a company making false or misleading green B-to-C claims about its products or services.

To put greenwashing in its proper context I think we should consider a wider range of cases, some of which are not immediately recognizable as instances of greenwashing.  More particularly, new paradigm greenwashing actions are brought by or on behalf of commercial consumers and involve B-to-B communications and representations.

Examples are breach of contract cases involving wind resource estimates and cogeneration equipment (see, e.g., here and here), eco-mark infringement suits over environmental compliance software and counterfeit solar panels (see, e.g., here and here), and civil and criminal fraud cases brought by governmental authorities for environmental crimes and sale of invalid renewable fuel credits (see, e.g., here and here).

From this broader vantage point, and keeping in mind the definition of greenwashing – making false or misleading claims about purportedly environmentally friendly products, services, or practices – I argue that we will be able to recognize, observe and understand the full scope of the greenwashing problem.

CJEL does not include abstracts in its articles, so I’m pasting my abstract in here:

For over forty years, environmental awareness and concerns about the environmental impact of products, services, and business practices have influenced consumer decision-making, corporate advertising, and marketing strategies.  As the purchasing power of green consumers has grown, the instances of marketers making false or misleading advertising claims about environmental benefits—“greenwashing”—have multiplied from an occasional irritant to a ubiquitous practice with major ramifications for the struggle to mitigate climate change.  Throughout, the paradigm for investigating, studying, and combating greenwashing has been to focus on claims by companies engaged in marketing consumer products to individual consumers and the effects of those claims on consumers. That was justifiable because, until fairly recently, nearly all instances of greenwashing involved such scenarios, and the vast majority of greenwashing legal actions were brought by or on behalf of individual green consumers.  But that view of greenwashing has become antiquated and is too narrow to account for greenwashing activity today.  Now that we are in the midst of the first sustained clean tech revolution, there is greatly increased commerce in green technologies, much of which is business-to-business.  The clean tech boom has given rise to a spate of lawsuits involving alleged false and deceptive representations about the genuineness, reliability, and efficiency of green technology equipment and related services.  The limited historical view of the traditional greenwashing paradigm misses this new species of cases entirely, perpetuating a significant greenwashing “blind spot” and leading to a gross underestimation of the scope and impact of greenwashing activity today.  This article argues that we need a new paradigm that takes a broader view of the phenomenon of greenwashing.  Specifically, we should look beyond the traditional paradigm of greenwashing, which is limited to deceptive marketing of consumer products to individual consumers, and contemplate a wider variety of cases that include representations made to green commercial consumers and legal actions brought by and on behalf of commercial consumers.  By changing the greenwashing paradigm in this way and defining it more expansively to reflect the commercial realities of the clean tech revolution, we will eliminate the blind spot and provide the broader vantage point necessary to identify and understand new instances of greenwashing.


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Eric Lane

Eric Lane, the founder and principal of Green Patent Law, is an intellectual property lawyer and registered U.S. patent attorney in New York and is a member of the bar in New York and California. Eric has more than two decades of experience working with wind, solar PV, CSP, biofuels, and geothermal, energy storage technologies, carbon capture and sequestration, medical devices, data communications, mechanical, chemical, internet and software.