Monday, June 20, 2011

Green Drop on Bottled Water Label Not Misleading for “Reasonable Consumer”

This posting was written by William Zale, Editor of CCH Advertising Law Guide.

No reasonable consumer would be misled to think that the green drop on the label of Fiji bottled water represented a third party organization’s endorsement or that Fiji water was environmentally superior to that of the competition, a California appellate court has ruled.

A purchaser attempted to assert violations of California false advertising and consumer protection statutes based on the state’s Environmental Marketing Claims Act. That Act incorporated the definition of “environmental marketing claim” contained in the Federal Trade Commission’s Guides for the Use of Environmental Marketing Claims (CCH Advertising Law Guide ¶15,640).

Environmental Marketing Claims

The purchaser cited the following general principle stated in the FTC guides:
“It is deceptive to misrepresent, directly or by implication, that a product, package or service offers a general environmental benefit.”
The purchaser contended that the Fiji green drop was deceptive because it implied that an independent third party organization had endorsed Fiji water as environmentally superior when, in fact, the green drop was purely a marketing creation.

The guides included a “globe icon” as an example of a symbol likely to mislead; but the court observed that a symbol of the earth would be more suggestive of a seal of an environmental organization than a green drop, the drop being the most logical icon for its particular product—water.

The FTC provided guidelines and a “safe harbor” for advertisers wanting to make environmental marketing claims, according to the court, provided only that the claims do not mislead reasonable consumers.

A green drop on the back of every bottle of Fiji water appeared next to the website name, “,” confirming to a reasonable consumer that the green drop symbol was associated with Fiji water, not an independent third party organization, the court added.

The court viewed the case as distinguishable from Koh v. S.C. Johnson & Son, Inc. (N.D. Cal. 2010) CCH Advertising Law Guide ¶63,741. In Koh, a household cleaning product label made express representations of environmental superiority, used the trademarked name “Greenlist,” a name not immediately apt to be associated with the product or its manufacturers, and identified the name as a rating system, which further suggested an independent source that rated other manufacturers’ products as well.

The May 26 opinion in Hill v. Roll International Corp. will be reported at CCH Advertising Law Guide ¶64,317.

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