Unpacking greenwashing debate: Part 1

Charne le Roux

These sins can be summarized as:

• hidden trade-off practices (a claim suggesting that a product is "green" based on a narrow set of attributes without bringing attention to other important environmental issues)
  
• lack of proof
  
• vagueness
  
• false labelling
  
• irrelevance
  
• a lesser of two evils (a true claim that distracts a consumer from the greater environmental impact
  of the whole product category e.g. organic cigarettes)
  
• passing off

Known also as greenwashing, which the concise Oxford Dictionary defines as "the act of misleading consumers regarding the environmental practices of a company or the environmental benefits of a product or service," the public grows increasingly wary of environmental claims.

Rising consumer scepticism

According to Charne le Roux, a partner at Adams & Adams, UK consumers are viewing 'green products' with equal scepticism. Research by the UK Carbon Trust, revealed that just 7% of consumers take companies at their word, while 53% view promotions which purport to support the environment as a one-time opportunity to win publicity.

"Consumers' demand for 'green' products has increased significantly over the past few years, but this is matched by an increasing number of incidents of greenwashing.

"In South Africa, a sustainability survey conducted by Ogilvy Earth SA in 2011 shows a high level of eco-awareness by SA consumers, but that only 18.3% of them trust a company's 'green' credentials."

She says this distrust is bound to have come from unsubstantiated and false claims (greenwashing) and practices that are undoubtedly a threat to all honest producers and retailers, but mostly from consumers who genuinely want to make a difference through their purchasing decisions.

Regulations complex for public

What are the requirements for 'green' or sustainable products and is the use of 'green' indicators on products regulated in terms of our law, with sanctions for non-compliance?

In the food industry, the Department of Health recently published new Labelling and Advertising of Foodstuffs Regulations, which came into effect in March as regulations to the Foodstuffs, Cosmetics and Disinfectants Act.

In terms of the new regulations, a foodstuff may not be advertised in any manner "which contains any information, claim, reference or declaration" that is not permitted in accordance with these regulations.

Le Roux, who was assisted in her research by Rene Viljoen, also of Adams & Adams, says the Act also deals with misleading descriptions.

It provides specifically that labelling descriptions that indicate a more humane treatment/rearing of animals or convey a message that the product is healthier or additive free, free range, organic, pure etc will only be permitted if they are linked to a specific protocol, registered with the Department of Agriculture or in terms of the Regulations of the Agriculture Products Standards Act or in terms of the National Regulator of Compulsory Specifications Act.

"The regulations provide further that descriptions such as 'fresh', 'natural', 'pure', 'home-made', 'premium', 'finest', 'quality' and 'hand-made and that are not regulated as aforesaid, shall only be permitted if they are compliant with the criteria stipulated in a specific Guideline

"Upon investigation, we found that many of the terms commonly encountered on food packaging, such as 'free range', 'organic', 'pure' and the like are, despite reference to them in the regulations, not meaningfully dealt in terms of the referenced protocols or the guideline. In addition, the search for information pertaining to these descriptions that are regulated, is a laborious effort of checking and crosschecking various statutes, their associated regulations and also gazetted notices.

"This is a task that lies beyond the means of ordinary members of the public," says Le Roux.

Terms too narrowly defined

To make matters more complicated, the regulated terms often only apply to a small section of food products. For example, the term 'free range', which is a description regulated in terms of a protocol, is, at this stage, only regulated in relation to eggs and the criteria to use it to label eggs are that the chickens should have continuous daytime access to open air runs and should also be able to scratch and dust bath. Their roaming space should also be big enough to allow for ample running space.

"The use and regulation of the term 'organic', which is defined as a protocol regulated description, requires specific mention because it appears on a significant selection of health foods," says Le Roux.

According to Niel Erasmus, at the Department of Agriculture, the publication of the regulations for organically produced products has met technical difficulties and will not be published until the Agriculture Products Standards Act is amended first. He advises that there is legislation in place that prohibits misleading claims, but according to Le Roux, it will be difficult to establish if in fact an organic claim is misleading, if there are no guidelines.

International requirements

In the UK, foods that are sold as 'organic' must be produced according to European laws on organic production. These laws require that all growers, processors and importers who grow or sell food items that are labelled 'organic' must be registered with organic certification bodies and their products certified by them through a thorough investigative process. The Department for Environment, Food and Rural Affairs (Defra) and other similar control bodies in the European Union, in turn, registers these certification bodies. Food sold as 'organic' must also reflect the organic certification body and the labels at the minimum must include a code number that denotes the approved certification body. Similar provisions apply in the US.

"In the absence of formal regulation in South Africa of the use of the word 'organic' on foodstuffs and other products, it would appear that any product can be so labelled and that it would be up to the consumer, or a competitor, to argue that the claim is misleading," says Le Roux. She suggests that a possible solution in dealing with the use of the term 'organic', pending formal regulation could be to rely on the fact that the SA organic food industry is already well established here. Consumers have come to have an expectation that all organic claims are supported by certification (in line with the EU and US principles dealing with the use of this term) and that, concomitantly, in the absence of such certification, an organic claim would be misleading.