Consumer’s Purchasing Habits Held Irrelevant in “Green” Marketing Case

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

A protective order against use of information about a consumer's purchasing habits has been issued by the federal district court in San Jose.

Household products manufacturer S.C. Johnson subpoenaed the information in a suit alleging that the company's labeling of its Windex glass cleaner and Shout stain remover misled consumers about the environmental safety of the products in violation of the California Unfair Competition Law and False Advertising Law.

In an earlier ruling, the court declined to dismiss the consumer's class action complaint alleging that S.C. Johnson's “Greenlist” label was deceptively designed to look like a third-party seal of approval (CCH Advertising Law Guide ¶63,741).

S.C. Johnson subpoenaed documents from the consumer's former employer, as well as retailers and credit card companies, in an effort to collect information to show that the consumer's attorney introduced him to the world of “green” products and that the consumer did not care about these products before filing this action, according to the court.

A party in federal court may seek a protective order if it believes its own interest is jeopardized by discovery sought from a third person.

The relevant issue in this consumer protection class action was whether the Greenlist label was deceptive and misleading, the court observed. Contrary to S.C. Johnson’s contention, the suit was not about the consumer's general purchasing habits.

The February 18 opinion in Koh v. S.C. Johnson & Son, Inc., CCH Advertising Law Guide ¶64,203.

Consumer Can Pursue Claim That “Greenlist” Label Was Misleading

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

A class action complaint alleging that a “Greenlist” label used by household cleaning products manufacturer S.C. Johnson was deceptively designed to look like a third party seal of approval could not be dismissed on the grounds that injury was not sufficiently alleged and that no reasonable consumer could have found the label misleading, the federal district court in San Jose has ruled.

Under the California Unfair Competition Law and False Advertising Law, suit may only be brought by a person who has suffered injury in fact and has lost money or property as a result of a violation.

The consumer sufficiently alleged that he did not receive the benefit of the bargain in that SCJ's Windex cost more than similar products without misleading labeling, according to the court.

On the question of whether the label was misleading, SCJ pointed out that the Greenlist label made no mention of a third party, described Greenlist as a “rating system” not a seal of approval, and directed consumers to SCJ's own website for further information. However, given the alleged context, it was plausible that a reasonable consumer would interpret the Greenlist label as being from a third party, the court found.

While the attributes identified by SCJ were relevant to the inquiry and might weaken the case for deceptiveness, they did not allow a ruling on the issue as a matter of law.

Guidelines issued by the Federal Trade Commission provided that a product label containing an “environmental seal,” such as a globe icon with the text “Earth Smart” around it, “is likely to convey to consumers that the product is environmentally superior to other products” and would be deceptive “[i]f the manufacturer cannot substantiate this broad claim,” the court noted.

The opinion in Koh v. S.C. Johnson & Son, Inc., No. C-09-00927 RMW, ND Cal., appears at CCH Advertising Law Guide ¶63,741