Last month, a putative class action was filed against Procter & Gamble challenging various green advertising claims for its Charmin toilet paper. The complaint brought a variety of state law claims targeting P&G’s sustainability claims, including “Keep Forests as Forests,” and alleged that the claims were explicitly false and misleading.

According to the complaint, P&G’s “Keep Forests as Forests” campaign made three promises to consumers by leveraging the “Protect-Grow-Restore” logo:

  • In its “Protect” promise, Charmin claimed to use only pulp certified by the Forest Stewardship Council or “FSC,” an international nonprofit that promotes responsible forest management by offering a forest certification system for forests and forest products
  • The plaintiffs challenged the “Grow” promise that “for every tree used at least two are regrown in its place.” The complaint alleged that this suggests that P&G is helping to replace the highly biodiverse boreal forest it actually uses via thoughtful and effective replanting efforts
  • For its “Restore” promise, Charmin touts its partnership with the Arbor Day Foundation to plant one million trees in forests affected by natural disasters

The plaintiffs argue these promises were false or misleading because P&G does not disclose that Charmin is sourced from harmful industrial logging practices such as clear cutting and burning of Canada’s boreal forest, a source of vital biodiversity, which is responsible for storing 30%-40% of the earth’s carbon.

Further, the complaint alleges that claims about replanting one to two trees for every tree used in the products misleads consumers to believe that its Charmin suppliers are converting the specific forest areas logged with activities mimicking the intact, biodiverse ecosystem that was there before the harvesting occurred. Plaintiffs allege that in reality, P&G’s replanting failed to keep the ecosystem intact, resulting in degradation of forest health, reduced biodiversity, and reduced carbon storage capability.

Next, the plaintiffs took issue with various green seals on the products’ advertising and labeling, asserting that the wood pulp certifications from the Sustainable Forestry Initiative (SFI) and the Programme for the Endorsement of Forest Certification (PEFC) have been criticized as weak and ineffective at certifying and enforcing responsible forest management practices.

Finally, plaintiffs argued that Charmin’s Sustainability Promise website—which prominently features the environmental benefits of old-growth forests, along with a consistent depiction of lush dense forests, in addition to text that uses phrases like “Keep Forests as Forests,” “Protect-Grow-Restore” (including on the back of Charmin packaging), and “for every tree used we are replacing two in its place”—likely conveyed that P&G is replacing trees in a manner that preserves the same level of biodiversity in the same location where the old-growth forests were harvested. This in turn conveyed that Charmin’s supply chain has no lasting negative environmental impact, a claim that plaintiffs allege P&G likely could not substantiate.

The plaintiffs allege that these practices violate various state consumer protection laws, alleging deception, that the claims were misleading, and that P&G’s green claims triggered obligations to disclose the environmental impact of its products more fully. Notably, the plaintiffs pointed out that many states have incorporated the FTC’s Green Guides as the legal standard for making certain marketing claims, and others have designated the FTC’s interpretation as persuasive authority for courts. Interestingly, many expected the agency to update the Green Guides before the end of FTC chair Lina Khan’s tenure, but that did not happen. 

We are closely watching this lawsuit, particularly as the change in administration will likely impact federal enforcement of environmental claims. We are also watching to see what if anything happens to the Green Guides. In the meantime, companies should be careful when making green claims to ensure they are truthful and substantiated and do not convey a broader message that could be challenged as misleading.

Read our chapter on green claims by downloading the new, 13th annual Advertising Law Tool Kit, or by listening to our Green Claims episode on Season 2 of the Ad Law Tool Kit Show. Be sure to secure your seat for Venable’s 11th Advertising Law Symposium on March 20 in Washington, DC. For more insights into advertising law, bookmark our All About Advertising Law blog and subscribe to our monthly newsletter.

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Photo of Shahin O. Rothermel Shahin O. Rothermel

Shahin Rothermel is an experienced counselor and defender who helps advertisers, retailers, merchants, and marketers advance their business goals while reducing legal and regulatory risks. Shahin provides clients with up-to-date, practical insights into the constantly evolving advertising, marketing, and e-commerce regulations, which allows…

Shahin Rothermel is an experienced counselor and defender who helps advertisers, retailers, merchants, and marketers advance their business goals while reducing legal and regulatory risks. Shahin provides clients with up-to-date, practical insights into the constantly evolving advertising, marketing, and e-commerce regulations, which allows her clients to make informed decisions. She has achieved successful resolutions, dismissals, and full walkaways in court, saving clients millions of dollars. She takes a pragmatic approach as a counselor, considering the implications of her advice for her clients’ marketing campaigns and their bottom lines.

Photo of Leonard L. Gordon Leonard L. Gordon

Len Gordon, chair of Venable’s Advertising and Marketing Group, is a skilled litigator who leverages his significant experience working for the Federal Trade Commission (FTC) to help protect his clients’ interests and guide their business activity. Len regularly represents companies and individuals in…

Len Gordon, chair of Venable’s Advertising and Marketing Group, is a skilled litigator who leverages his significant experience working for the Federal Trade Commission (FTC) to help protect his clients’ interests and guide their business activity. Len regularly represents companies and individuals in investigations and litigation with the FTC, state attorneys general, the Department of Justice (DOJ), and the Consumer Financial Protection Bureau (CFPB). Len also represents clients in business-to-business and class action litigation involving both consumer protection and antitrust issues. He also counsels clients on antitrust, advertising, and marketing compliance issues.

Claudia A. Lewis

Claudia Lewis, co-chair of Venable’s FDA Group, counsels clients on matters involving Food and Drug Administration (FDA) regulation, labeling, and marketing of foods, over-the-counter (OTC) drugs, medical devices, and other products. With deep knowledge of dietary supplement labeling regulations, Claudia represents scientists, physicians…

Claudia Lewis, co-chair of Venable’s FDA Group, counsels clients on matters involving Food and Drug Administration (FDA) regulation, labeling, and marketing of foods, over-the-counter (OTC) drugs, medical devices, and other products. With deep knowledge of dietary supplement labeling regulations, Claudia represents scientists, physicians, nutritionists, healthcare associations, and citizen groups. She has also aided international clients in establishing a U.S. market for their products. She has prepared and presented constitutional and administrative law cases before the FDA, Federal Trade Commission (FTC), Department of Justice (DOJ), Bureau of Land Management (BLM), and Environmental Protection Agency (EPA).