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Keeping you in-the-know on environmental, social and governance developments

Water company BlueTriton is in hot water (pun not intended) as litigation brought by an environmental group comes to a boil (pun fully intended). The company owns a portfolio of bottled water brands, including Poland Spring®, Deer Park®, Arrowhead®, and Pure Life®, which are sold to consumers in recyclable and recycled plastic bottles.  The lawsuit 

…challenge[s] BlueTriton’s alleged efforts to market itself as a “sustainable” and “environmentally friendly” company. Yet Plaintiff does not challenge BlueTriton’s product labeling or advertising. Rather, Plaintiff seeks to use the [D.C. Consumer Protection Procedures Act (“CPPA”)] to challenge alleged sustainability representations buried in several of BlueTriton’s brand website…

recent filing by the company seeking to dismiss the lawsuit stakes its defense on several technical legal arguments that we won’t get into here. However, the two main pillars of the arguments warrant our attention. 

The first of these pillars is based on the Federal Trade Commission’s (FTC’s) Green Guides (cited in the filing). The Green Guides are a resource for marketers responsible for making product claims about green or sustainability attributes and looking to avoid lawsuits like the one facing BlueTriton. BlueTriton argues that it properly qualified its marketing statements in compliance with the Green Guides. We have an upcoming guidebook for members on the Green Guides. 

The second pillar of BlueTriton’s argument has come under scrutiny from The Intercept who takes it as an admission of greenwashing by the company. BlueTriton argues that any claims not covered in the first pillar of their argument are “Non-Actionable Puffery” or non-quantifiable statements that are merely aspirational and were never meant to be taken as marketing claims. Legally I understand what BlueTriton is trying to do here. It isn’t uncommon to write multiple legal theories into a filing so that if one isn’t persuasive, you have another to fall back on. However, from an outsider’s perspective, calling your own environmental aspirations “puffery” gives the impression that you aren’t taking environmental issues seriously – and it does seem to conflict with the basic premise of the first pillar.

What This Means

There are two takeaways from this development. First, the FTC’s Green Guides are an important tool for both marketers and the FTC and should not be overlooked. The Green Guides provide valuable information on how to comply with Section 5 of the FTC Act and while they don’t pre-empt state law, they are a persuasive authority to courts when deciding cases like this one. We’ll be blogging about our guidebook on using the Green Guides once it’s posted, so be on the lookout. 

Second, don’t assume that your legal filings will only be read by the judge. Remember that the media has access to court filings and the language you use in those filings will not only be analyzed through a legal lens. Lawyers often make every possible argument, even if it might appear to contradict earlier statements. Consider wording your arguments carefully so that they don’t reflect negatively on the company. 

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The Editor

Zachary Barlow is a licensed attorney. He earned his JD from the University of Mississippi and has a bachelor’s in Public Policy Leadership. He practiced law at a mid-size firm and handled a wide variety of cases. During this time he assisted in overseeing compliance of a public entity and litigated contract disputes, gaining experience both in and outside of the courtroom. Zachary currently assists the editorial team by providing research and creating content on a spectrum of ESG… View Profile