Law reform and tougher legal sanctions to stop greenwashing are critical, according to a leading intellectual property expert from The Australian National University.

 

“Greenwashing is corporate spin which involves making misleading or deceptive claims that a company’s products or services are environmentally sustainable or friendly,” said Dr Matthew Rimmer, an ARC Future Fellow and Associate Professor at the ANU College of Law. “Such conduct is putting consumers at a disadvantage and giving some businesses an unfair advantage in a market increasingly concerned about the environment and climate change.”

 

Dr Rimmer said that the problem of greenwashing requires a robust, integrated approach to law reform.

 

“There is a need to update and reform advertising law, consumer law, and trade mark law,” he said.

 

“In regards to advertising law, the Australian Advertising Standards Bureau has developed a green code, but it has not effectively enforced this code. This immediately raises concerns about whose interests it will serve – the mad men of Madison Avenue or consumers. By comparison, the United Kingdom Advertising Standards Authority has been much more vigilant about greenwashing.

 

“The Australian Competition and Consumer Commission has established guidelines on green marketing and taken enforcement action in respect of misleading and deceptive claims about the environment and carbon offsets. However, the body needs to redouble its efforts, particularly in light of the new clean energy regime in Australia. Consumer law should be updated to provide for specific offences in order to discourage greenwashing, astroturfing and fraudulent carbon claims.

 

“There is also a need for IP Australia and other trade mark offices around the world to take a stronger approach to greenwashing. Currently the registers are cluttered with trade marks that espouse a company’s so-called green credentials, but which don’t really stand up upon closer inspection. Trade mark examiners need to take a much tougher stance when assessing green trade mark applications, particularly when it comes to the question of distinctiveness. The law should be updated, so that trade mark applications, which involve misleading or deceptive environmental claims, can be refused or revoked. Certification trade marks should have higher standards of transparency and accountability.

 

“In regards to domain names the Internet Corporation for Assigned Names and Numbers (ICANN) is about to auction the top level domain dot eco. There is a need to ensure that the winning bid is truly driven by community concerns for environmental sustainability, and has a clear plan to address the problem of greenwashing.”

 

Dr Rimmer added that the issue also raised concerns for freedom of speech.

 

“There needs to be greater protection for environmental campaigns and spoofs – such as Greenpeace’s protest with the characters of Ken and Barbie against Mattel’s packaging; the Twitter spoof account @BPGlobalPR; and The Yes Men’s protest against the United States Chamber of Commerce. Big companies should not be able to use intellectual property rights to stifle political speech and artistic expression.”