Artisan Spirit: Fall 2021

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IT’S NOT EASY BEING GREEN Legal Considerations for Marketing Your Sustainability Efforts

Written by Bao M. Vu and Corey Day

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onsumers are increasingly seeking out eco-conscious “green” brands.1 You may have already decided to go green by implementing sustainable practices at your distillery, or maybe it’s something you’re planning to do. And that’s great. Commendable, even. But if you’re considering advertising your green practices or incorporating them into your branding, you need to exercise caution. Your well-intentioned efforts may be setting you up for a consumer lawsuit, or a federal or state enforcement action. There are both federal and state laws designed to protect consumers from false or misleading statements. Unfortunately, it’s easy to run afoul of these laws if you don’t pay careful attention to how you market your products. Violating these regulations and laws may result in substantial penalties by way of government action or private claims from customers or competitors that can lead to refunds, disgorgement, and paying attorneys’ fees. On the federal front, the FTC has released “Green Guides” with specific considerations for marketing claims ranging from recyclable materials to renewable energy use.2 These guides aren’t empty suggestions. The FTC actively brings claims against businesses whose marketing practices fall short of these guides.3 The main thrust of the

1  Empowered Consumers Call for Sustainability Transformation, Forbes ( Jan. 21, 2020), https://www.forbes.com/sites/forrester/2021/01/21/empowered-consumers-call-for-sustainability-transformation/?sh=2f1edaf22042 2  Press Release, Fed. Trade Comm’n, FTC Issues Revised “Green Guides” (Oct. 1, 2012), https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-issues-revised-green-guides/greenguides.pdf 3  Lesley Fair, Deceptive “Certified Organic” Claims Leave Consumers Verklempt, Business Blog (Sept. 19, 2019, 11:04 AM), https://www.ftc.gov/news-events/blogs/business-blog/2019/09/deceptive-certified-organic-claims-leave-consumers-verklempt W W W . ARTISANSPIRITMAG . C O M

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