Web Marketing To Green or Not to Green? Beware!

Many people falsely think that the 'web' is a Trade Practices Act free zone; that is, that you can pretty well do or say what you like, when you like - and get away with it. Recent experience has shown that in Australia, web-based marketing is just as scrutinised as  any other form - and your website is about as public as a representation can get.

Take for example, the recent trend towards green marketing - which in many cases, is designed to hitch a very brown product to the green bandwagon. Consumers are suddenly being beset by advertisers claiming their product is greener than the rest, or that it comes with guilt-free 'carbon offsets' or even better, is pristine 'carbon neutral' itself. These terms are relatively new to the public and while may be familiar, come laden with a high degree of confusion or misunderstanding. Some marketers have sought to exploit this through positive but inaccurate product association - it's the "greenwash".

Advertisers and sellers need to be very, very careful with green claims. Not only are they potentially confusing to consumers, but they can also be downright misleading if not presented in an accurate and clear manner. This rule applies to websites just as much as to any other form of advertising - whether it's signage, labelling, packaging or simply a claim as to an affiliation. If you want to make environmental claims about your goods or services - make sure they are clear, 100% accurate and scientifically verifiable - and that they are in a context which keeps them that way.

Let's take a look at a recent example. The Gold Coast hosts a big V8 supercars event and opponents of V8 racing often refer negatively to its carbon footprint. It is therefore not surprising that V8 supercars proudly announced in 2008 that it would plant 10,000 native trees to "offset" the emissions from the championship series. While presumably the claim as to tree planting was true, the ACCC alleged that people were likely to be misled or deceived into thinking that planting these trees would "quickly" offset emissions.  In fact, as the ACCC pointed out, "...if businesses want to make claims  that planting trees will offset carbon emissions, they must explain that this will only occur over the full life of the trees... Further, when seedlings are first planted the amount of carbon that they absorb is likely to be very small.  It is not until the trees are fully grown that they can maximise carbon absorption."

So was this claim potentially illegal? YES. Why?

V8 Supercars admitted it may have breached section 52 of the Trade Practices Act 1974 (Cth) and agreed to provide court-enforceable undertakings to the ACCC. Section 52 prohibits companies/ businesses from engaging in conduct that is likely to mislead or deceive the public. The prohibition is widely enforced and applies even where no one was actually misled or deceived at all. The Act also contains specific prohibitions against certain false or misleading representations as to goods or services. The maximum penalty per offence is $1.2 million. As this case illustrates, the ACCC requires a high degree of accuracy in green marketing claims and even where an ad is literally "true", an overall impression which may be false can be enough to attract adverse ACCC attention to you and your business. By providing undertakings, V8 supercars avoided liability - provided they comply with those undertakings.

So in summary - if you want to claim your product is green, pause to make sure that the people likely to read your website or ad will gain a factually correct and accurate overall impression. This is why factual omissions or tiny disclaimers containing critical clarifications are often held to be ineffective to prevent a breach of the law. Similarly, ads which contain wildly exaggerated claims or predictions can also be misleading - in this area, more than most, clarity and accuracy in a clear context are the key.

Website advertisers and marketers should audit their web pages and other materials like brochures, pamphlets, TV and radio ads and so on -  to identify and rewrite claims or representations which may infringe section 52. New claims should similarly be reviewed - the minute they hit the web, they are in the public domain and you may face TPA liability.

MATHEWS HUNT LEGAL can help you to audit and rectify your website and marketing materials - to ensure that you don't find yourself facing fines of up to $1.2 million. An audit is quick, simple and far cheaper than getting it wrong!

Contact Peter Hunt, Managing Partner, MATHEWS HUNT LEGAL on 07 5555 8000 Gold Coast Body Corporate Lawyers (www.mathewshuntlegal.com.au)

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