Tougher laws needed to smash green smoke screens

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 Matthew Rimmer is concerned about greenwashing and its impact.

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 trademark 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 trademark offices around the world to take a stronger approach to greenwashing. Currently the registers are cluttered with trademarks that espouse a company’s so-called green credentials, but which don’t really stand up upon closer inspection. Trademark examiners need to take a much tougher stance when assessing green trademark applications, particularly when it comes to the question of distinctiveness. The law should be updated so that trademark applications, which involve misleading or deceptive environmental claims, can be refused or revoked. Certification trademarks 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.”