关键词： energy auditing,environmental assessment, energy accounting, carbon assessment, carbon accounting, carbon consultancy, energy consultancy. CDM, renewable energy; Energy engineer, project manager, project engineer;
也学肖同学，先申明一下：成绩一般；参与过能源方面的咨询工作；就业倾向能源产业。应该会在下个月初开始投简历，第一轮准备侧重碳市场。
下面写的全是根据自己的一些经验，以及相关领域的朋友的交流，如有不准不确切的信息，还望谅解。
关于能源产业，先大概列出一个表格。
石油
--交易类
--工程类
--咨询类
新能源
--工程类
--咨询类
碳市场
--工程项目类
--市场销售类
--咨询类
废物市场
--工程项目类
--市场销售类
--咨询类
--技术类
与上述市场相关的审计产业，财务产业，金融投资产业，还有我不知道该怎么翻译的assessment产业。
石油市场。我不熟悉。从今年career talk上来看，纯粹的工程技术的职位没有开放，不知道工程学生除了做市场.交易以外，能否有tech的职位。
新能源市场。工程项目和碳市场联系很紧密，在碳市场会详细介绍。只有新能源在本地的前景，除了风能发电老大vestas在本地有研究部外，没有太多的MNC。当然，本地的IUT，也算是一个新能源的公司，不过，当初雷声超级大，现在雨点十分小，不知道前景如何。
在新能源这个市场里面可以做咨询类，帮助客户提供最佳的能源使用方案；大的咨询公司逐步的开始提供这项服务。本地的公司倒是有很多。
碳市场。新 加坡两年前左右就提出要做亚洲的carbon hub，但是，依旧是雷声大，雨点小。另外，由于地理因素，新加坡本身并不适合碳市场的深层开发，不过，做交易倒是十分便利。期待今年年底，海峡证券开设 碳交易。现在亚洲的老大，除了日本就是中国了，前端时间，北京开设了碳交易所。
但是，一定要强调的这个但是。新加坡的碳市场前景还是十分 之美好。因为，这个市场可以带动很多产业。比如，要想做emission trading，必然要涉及到emission的测量，因此，很多咨询公司或专门公司提供测量；要交易，必须要有carbon credit，这个credit的产生，又会使很多项目工程公司参与进来，提供产生carbon credit项目的设计，建造等等。中间要做的事情，就是咨询了，如何更合理的利用能源，如何提高能源的使用效率，又是咨询公司的业务了，这个业务的终端 又会涉及到提高能源测量，能源替代的生产制造购买等商机。
与新能源紧密相连的是碳市场的credit产生阶段，根据现在通用的golden standard，自愿/强制碳市场都可以使用新能源替代品所产生的credit进行交易。这些新能源的项目包括，在东南亚的这些国家，开发CDM等等。
废物市场。新加坡的废物就是那么几个公司在做，包括收集，分类，回收，焚烧。在新加坡已经饱和。但是在中国却是一个极大的市场。
我个人觉得，咨询类工作无处不在，他们利用信息的不对等，收取费用，提供或具体或概括的方案。所以，上述各个市场，都离不开咨询。至于，工程类的工作，更是不可缺，他们是整个项目的核心。销售市场是交易的进行中介。
除此之外，与上述各个市场各个类别紧密相关的，还涉及到运输，服务等等行业。
这里的各个行业，不像银行，不像大的咨询公司，向我曾经去过的UGL，他们做能源的也就是几个人而已，入行两年左右，便已经是行业的先驱了。所以，如果对这些能源的附带产业感兴趣的话，越早入手越有利。
附：
主 要想说的是，关于能源的附带产业/服务将是一个广泛的结业趋势。能源的附带产业，包括我现在在做的碳市场（carbonmarket），与碳市场紧密联系 的能源审计（energy audit），以及很早前就一直呼声很高的alternative energymarket，当然，这个比较risky,源于粮食危机。and many many more..
单说一个碳市场，就有很 多很多可以就业的方向，包括emission trading，那天BP的career talk，我问了他们关于emissiontrading的事，他们的答复是，两到三年内，肯定会涉及。现在在欧洲，emissiontrading已经 相当普遍，在非京都协议缔约国的美国，emission trading也是被大家重视。除了trading外，如何真正的达到能源使用的降低，以及提高energy efficiency，都是这一两年内的热门方向。
不过，碳市场受到金融危机的影响也是比较大，庆幸的是，在欧洲有政策，在美国有意识，在亚洲有补贴，所以，十年之内的结业应该不成问题。
和能源市场还有关的就是相对的咨询业，这里说的不是那些超级大公司，小公司在能源方面的作用不可小视。单单新加坡，在能源方面的咨询公司就不小几十家，他们为亚洲的能源使用做出了不小的贡献。
还有很多很多很多，和能源相关的市场..待我单独开贴，在细细道来
Thursday, September 18, 2008
Enica puts energy into saving costs for others
http://www.walesonline.co.uk/business-in-wales/business-news/2008/09/17/enica-puts-energy-into-saving-costs-for-others-91466-21832262/
ENERGY consultancy might well be one sector of business as able as any to withstand the impact of the credit crunch and economic downturn.
In times of trouble, companies need to save money. Making a business more energy efficient is one way to cut down on costs – and get some good PR for doing something of environmental benefit.
And that is where consultancy Enica, based in Treforest, is looking to exploit the market.
With two strands to the business – energy consultancy and supplying energy meters – it has already seen fast growth in the 18 months it has been up and running.
That growth is demonstrated by, in the past month, doubling the number of people it employs.
Enica is run by business partners Bryan Mullen and his son-in-law David Harden and was established in 2006.
Its year one, turnover was £146,000. In the next year the company is looking to turn over £1m.
That hike in turnover is largely down to the development of its “smart metering”, which can be used in tandem with the consultancy the company offers.
When the pair started their business they set out to tie consultancy with metering, providing business with both cost and CO2 savings.
Earlier this year, the company won the opportunity to roll out the Welsh Assembly Government’s Smart Metering Pilot Trial in conjunction with Bridgend County Borough Council and the Carbon Trust.
Mr Harden explained how the business had developed in its short lifespan.
He said: “Enica is a family business. I work with my father-in-law who had been doing this for a long time and we wanted to expand. I was brought in and we built the business together.
“We help business reduce their energy costs and there are two ways we do that. First as a consultancy where go into a business and we tell people how to save energy, and give them plans and activities they can undertake to reduce their costs. We also provide smart metering products.
“We have developed our own smart metering products, manufactured by a company in South Wales, and we think they are the most cost effective meters available in Wales.”
Having developed this product the company is already finding a challenge in finding the right way to market the innovation to the right customers and in the most cost-effective way.
There are also differences in the way different customers want to use the service.
Mr Harden said: “We find that a lot of people have different outlooks in using our service. Some people want their business to be more environmentally friendly and then there are businesses interested in saving money because money is so tight at the moment.
“Whatever, we are bracing ourselves for this to take-off. We can’t really visualise if we are going to sell 1,000, 5,000 or a million. The market is incredibly big.”
Mr Harden puts Enica’s initial success down to the diverse backgrounds of himself and Mr Mullen.
Mr Mullen had been a sole trader in energy consultancy for 10 years and Mr Harden had been working as a project manager in the land remediation industry.
Mr Harden said: “I came from a different industry altogether, and I saw a huge opportunity for energy-saving consultancies as soon as I got myself immersed into the consultancy side of this business.
“I was also able to look at it with a fresh pair of eyes and was able to look at simple problems that have never been resolved and came up with solutions that could resolve those problems.”
Enica is expanding its product range and introducing new inventions to make smart metering easier to implement.
Oil trades in narrow range in Asia
http://www.abs-cbnnews.com/business/09/18/08/oil-trades-narrow-range-asia
SINGAPORE - Crude oil prices traded in a narrow range on Thursday in Asia after rebounding several dollars on the US government's bailout of insurance giant American International Group (AIG), dealers said.
New York's main contract, light sweet crude for October delivery, was 16 cents lower at 97.00 dollars a barrel. The contract surged 6.01 dollars to 97.16 at the close of floor trading Wednesday on the New York Mercantile Exchange.
Brent North Sea crude for delivery in November was unchanged following a gain of 5.62 dollars to 94.84 dollars Wednesday in London.
Prices traded near 90 dollars at the start of the week after US investment bank Lehman Brothers filed for bankruptcy while another Wall Street firm, Merrill Lynch, was forced to sell itself to Bank of America for 50 billion dollars.
Victor Shum, of international energy consultancy Purvin and Gertz in Singapore, said prices recovered after the US Federal Reserve on Tuesday announced an unprecedented rescue loan of up to 85 billion dollars to save AIG.
The move aimed to head off the company's collapse which was expected to lead to a global financial calamity in a crisis that grew out of the US subprime, or higher-risk, mortgage sector.
"The market got oversold a couple of days ago reacting to all this bad financial news," Shum said.
"We are bound to see a lot of volatility in oil."
Shum said oil prices had also received some support from a reduction in production and refining after recent hurricanes that hit the Gulf of Mexico.
There was some flight to oil as a "safe haven" during the financial turmoil, although oil is not as good a haven as gold because economic troubles could further hit oil demand, Shum said.
Oil prices have fallen heavily from record levels above 147 dollars in early July, on worries the global economy is slowing and causing a dent in energy demand.
But prices gained some recent strength from attacks this week on oil facilities in key African producer Nigeria, Shum said, although he added that factor would have been stronger without the global financial worries.
Armed Nigerian militants who have declared an "oil war" in the south of Nigeria claimed Wednesday to have blown up a major pipeline it believed was operated by Royal Dutch Shell and Italy's Agip.
The latest report on US energy stockpiles by the country's Department of Energy (DoE) provided additional backing for prices.
DoE said the consumption of oil-based products has fallen 4.4 percent in the past four weeks compared to the same period last year.
The department also said crude reserves sank 6.3 million barrels in the week ending September 12 when US energy production was severely hampered by Hurricane Ike in the Gulf of Mexico.
"I think longer-term the trend is that the fundamentals will still support a strong price for oil," Shum said.
as of 09/18/2008 12:51 PM
Tuesday, September 16, 2008
Japan carbon trade targets to be voluntary - paper
http://www.forbes.com/afxnewslimited/feeds/afx/2008/09/15/afx5422571.html
TOKYO, Sept 15 (Reuters) - Japanese companies taking part in a trial carbon trading system to be launched next month will work to voluntary reduction targets forgreenhouse gas emission, rather than mandatory ones, a newspaper reported on Monday.
The domestic scheme will allow companies exceeding their target to buy credits from companies below their limit, but steer clear of binding limits that have been opposed by big emitters such as steelmakers.
Targets will be set either as a company's total volume of emissions, or as the amount of emissions per unit of production, the Asahi Shimbun said, citing a draft of a government plan to be presented to an advisory panel this week.
The latter option would cater to worries from big industries that absolute targets alone would hurt growth and competition with rivals overseas.
The trial scheme, proposed by outgoing Prime Minister Yasuo Fukuda in June, will also allow companies to trade credits from the Kyoto Protocol's Clean Development Mechanism which fund clean-energy projects in developing countries.
Japan has until now encouraged voluntary reduction pledges from industries, avoiding a European Union-style cap-and-trade system that binds emitters to mandatory limits.
Pressure has been growing for a national trading scheme, with New Zealand set to introduce emissions trading from 2009 and Canada set to launch a market in 2010.
Japan is one of the world's most energy-efficient countries after years of spending by manufacturers to save energy, but efforts from offices and households to cut emissions have lagged.
Comparing Obama and McCain
http://online.wsj.com/article/SB122143710912734333.html?mod=googlenews_wsj
Both John McCain and Barack Obama exhorted Americans to dedicate themselves to public service in an appearance at Columbia University on Thursday, to mark the seventh anniversary of 9/11. But Americans need no lectures from politicians to participate in their nation's civic life. They need them to stay out of the way. Between the two, Sen. Obama is far less likely to do so.
At first blush, the two candidates appear indistinguishable on the subject. Both have urged Americans to look beyond their individual, material pursuits and commit themselves to causes greater than themselves -- Sen. McCain arguably even more aggressively than Mr. Obama. The difference is that for Mr. McCain this is a moral ideal. For Mr. Obama, it is a governing mission. "Making that call to service will be a central cause of my presidency," he declared in an Independence Day address at the University of Colorado and elsewhere.
Mr. McCain certainly uses his bully pulpit to proselytize Americans about public service. But he more or less stops there, even repeatedly cautioning during the Columbia forum against federalizing public service, although that doesn't mean that he wouldn't throw taxpayer money at some of his pet service projects. However, his Web site offers nothing near what Mr. Obama is proposing.
Mr. Obama has laid out a 10-page vision statement that includes virtually every program proposed by the left and the right in recent memory and then some. President Bush's controversial faith-based initiative? He'll keep it. President Kennedy's Peace Corps? He'll double it. Even Mr. McCain's seven-year-old plan to raise a domestic civilian force to fight terrorism and triple enrollment in AmeriCorps gets a plug.
In addition, Mr. Obama would create several new corps of his own: a Classroom Corps to help teachers and students in underperforming schools; a Health Corps for underserved areas; a Clean Energy Corps to weatherize homes and promote energy independence. The last is separate from his Global Energy Corps, to promote low-carbon energy solutions in developing countries.
Mr. Obama calls all this his "Plan for Universal and Voluntary Citizen Service." It might live up to its "universal" billing, given that it would prod Americans of all age groups -- from preteens to retirees -- to sign up. But as to its voluntariness, the plan will make generous use of Uncle Sam's money -- and muscle.
By Mr. Obama's account, he will make federal education aid conditional on schools requiring that high-school and even middle-school students perform 50 hours of service each year. He will also offer college students $4,000 every year for doing 100 hours of public service. That works out to $40 an hour -- a deal that only the very wealthy could refuse. (The Obama campaign puts the price tag for this alone at $10 billion.) He promises to provide older Americans who perform civic service with "additional income security, including assistance with retirement and family-related costs, and continuation of health-care coverage." But a government that links benefits to service can take away benefits for nonservice.
The real issue is why Mr. Obama thinks it is necessary to take such extraordinary steps to push all Americans into service. Americans every year contribute close to $300 billion out of their own pockets to charities at home and abroad. This is the highest of any nation -- seven times more than Germans and 14 times more than Italians per capita. Americans are equally generous with their time. According to the Corporation for National and Community Service -- a federal agency -- last year Americans volunteered 8.1 billion hours of service valued at $150 billion to community organizations.
Mr. Obama doesn't think this kind of voluntary effort is sufficient, because it can't deliver social justice. In his memoirs and elsewhere, he distinguishes between community service and organization. Community service, he believes, can offer short-term relief to those temporarily down-and-out, through things like church food pantries or homeless shelters. It can also address concrete problems such as vandalism or crime through neighborhood watches.
However, Mr. Obama believes -- as he wrote in a 1990 anthology, "After Alinsky: Community Organizing in Illinois" -- that this kind of service plays into the "individualistic bootstrap myth." It doesn't by itself help the disenfranchised trapped in inner cities.
For that, Mr. Obama wants collective political action, i.e., bottom-up mobilization, to help the disaffected extract resources from the powers-that-be to remake their communities. This is what Mr. Obama attempted to do during his years as a community organizer. And that's what he hopes all his cadres of social workers would also do.
Mr. Obama's moral vision presupposes that the key to individual advancement is securing a larger share of a fixed social pie from those who control it. This posture, relevant in premodern patronage systems, is profoundly at odds with the modern, market economy in which individuals don't have to wrest resources from others to prosper; they have opportunities to create their own. That requires a morality of independence and self-reliance -- precisely what Mr. Obama downplays with his comments about the "individualistic bootstrap myth."
Bolstering this morality is a complex task that will involve addressing social policies that have contributed to the breakdown of families, sapping crucial psychological resources from inner-city communities -- as Mr. Obama himself has acknowledged on occasion. It won't be accomplished by deploying federally funded armies of self-righteousness.
In his first memoir, "Dreams from My Father," Mr. Obama tells how he mobilized residents of a housing project to get the Chicago Housing Authority to clean up asbestos in their walls. The agency did, then ran out of funds for even more pressing problems like repairing leaky roofs, leaving residents even worse off.
Mr. Obama's take-away: more activism for more funds. One fellow activist, a diminutive, married woman, demurred. "Ain't nothing going to change, Mr. Obama," she told him. "We just gonna concentrate on saving our money so we can move outta here as fast as we can."
She is the one who learned the right lesson.
Ms. Dalmia is a senior analyst at Reason Foundation.
Monday, September 15, 2008
Gold Standard Registry Experiences Rapid Growth in Carbon Market Projects and Users
http://www.yourrenewablenews.com/news_item.php?newsID=10359
APX, Inc., the leading infrastructure provider for environmental and energy markets and the Gold Standard Foundation today announced that the Gold Standard Registry now includes more than 200 valid greenhouse gas reduction projects in various stages of approval, representing renewable energy and energy efficiency projects in over 30 countries. Of these, approximately 100 projects are far enough in their development as to be publicly posted in the Registry. The Registry, built and operated by APX, manages the full lifecycle of a carbon credit, including creation, serialization, transfers, and retirement, enabling trading of Gold Standard Voluntary Emissions Reductions (VER) credits and Certified Emissions Reductions (CER) credits around the world.
The dramatic growth in adoption of the Gold Standard Registry represents a total potential of approximately 15 million metric tons of carbon equivalents (MtCO2e) per annum. In addition, there are now over 190 account holders, both approved and pending. These users represent major market participants including carbon project developers, UN-accredited Designated Operational Entities validating and verifying projects, brokers and corporations. The Registry ensures the transparency, quality, reliability, and security of carbon commodities for all users and market participants, in accordance with the premium standards set by The Gold Standard Foundation and allows verification of offset claims by both buyers of credits and the public.
“The exciting growth of the Registry in both the number of projects and account holders demonstrates the value associated with Gold Standard carbon commodities in the market,” said Michael Schlup, Director of the Gold Standard Foundation. “The Registry’s ability to ensure that the carbon credits in the Registry are verified, unique and valid provides a high level of trust and transparency for buyers and sellers.”
“The Gold Standard Foundation continues its strong leadership in the carbon market and we are pleased to provide them with a market solution that enables this rapid expansion,” said Brian Storms, Chairman and CEO of APX. “Our trusted market infrastructure easily scales to meet the transaction needs of the market in a secure and cost-effective manner.
Free: 'Green' Is So Appealing
http://www.law.com/jsp/nylj/PubArticleNY.jsp?id=1202424493387
The marketing community has discovered the power of "green marketing." Over the last year, brands have invested heavily in advertising devoted to promoting products, services and brands as being "eco-friendly," "carbon-neutral" and environmentally "sustainable," among other environmental buzzwords. Consumers are urged to buy "green" not only for their own sake, but also for the very survival of the earth and its climate. For example, they are bombarded with glossy ads touting the environmental improvements in energy production, automobile manufacture and forestry. And, they are offered cleaners and detergents that contain only biodegradable, non-toxic ingredients.
Such ads often seek to convince consumers that they can help the environment, while making little personal sacrifice. The premise is that the consumer can buy the advertised eco-friendly product instead of the environmentally inferior alternative, while obtaining equivalent or better product performance at a comparable price. Presented with a choice between two such comparably performing products, consumers will often choose and even pay more for the product that best fulfills their personal desire to improve the environment. Green marketers have succeeded in adding environmental performance to the list of factors consumers will consider before purchase, even for those products never before marketed with environmental claims.
While green marketing claims can be a highly effective marketing tool, many consumers unfortunately lack the information or knowledge necessary to assess these claims on their own.
Green marketing claims are considered "credence claims," to borrow Federal Trade Commission parlance. In other words, the consumer must take the advertiser's word for it that the product is environmentally friendly. While the average consumers can determine on their own whether a "non-toxic" cleaner removes stains, they are not capable of verifying whether that cleaner kills germs as well as a traditional brand, or whether the multi-syllabic ingredients on the label are really "environmentally friendly."
Advertisers are struggling with the lack of published guidance regarding how to substantiate and accurately describe the environmental benefits of their products. Present regulation and guidance is outdated, having been written at a time when the only common green marketing claims were terms like "recyclable," "biodegradable" and "ozone safe." This first generation of environmental marketing claims was relatively easier to understand, define and support.
Today, not only have technologies and materials changed, but consumer concern for the environment reaches far earlier into the product life cycle. Consumers' purchase decisions may be driven as much by the externalities of product production as by what happens to the product after it is thrown away. Many consumers pay attention to pollution, raw materials, ingredients, and energy consumption both in production and transport to market.
This shift in consumer attitudes, and marketers' intense focus on environmental issues has outpaced the development of regulation. The gap may be narrowing, however, as we discuss below.
First, the Federal Trade Commission is developing updated standards for environmental advertising claims. Second, private industry has begun to police itself in the green marketing area through self-regulation and private standard-setting organizations. And third, private false advertising litigation has kicked into gear against alleged instances of deception.1 We examine each development in more detail below.
FTC Revisions to Green Guides
The Federal Trade Commission polices advertising claims under Section 5 of the FTC Act. This includes most environmental marketing claims.
As with all other advertising claims, green marketing claims must comply with the longstanding rules, articulated in FTC's Deception Policy Statement, that an advertiser must have substantiation for all reasonable interpretations of the advertising claims it makes, and that this substantiation must consist of a competent and reliable basis for the claims.
In 1992, the FTC issued the first edition of its industry guides regarding environmental marketing claims, which is still in effect. Now commonly called the "Green Guides," these guides specifically define terms such as "recyclable" and "biodegradable" and provide examples of how to phrase and substantiate such claims in a variety of situations. Another area the Guides address in detail is claims regarding chlorofluorocarbons and "ozone-friendly" products. This was a hot issue in 1992, on the heels of the Montreal Protocol, but is relatively insignificant today due to the successful phaseout of CFC-depleting products.
More recently, in response to the new wave of green marketing claims such as "sustainable," "eco-friendly" and "carbon neutral," the FTC has begun the process of updating the 15-year-old Green Guides. It has convened a series of public workshops to gather information on current issues and concerns relating to environmental claims.
The first workshop, which took place in January 2008, focused on the entirely new category of green claims relating to global warming issues, such as renewable energy and carbon offsets. The second, a few months later, dealt with green packaging claims. And the third, which took place in July, addressed green buildings and textiles.
Efforts to update the Green Guides may not be easy; illustrating the difficulty is the now-ubiquitous marketing term "sustainable." While this word is often used loosely by marketers to convey a general sense of products or production practices that do not degrade the environment over time, certain industries have adopted very specific and quantifiable definitions.
In the forestry industry, for example, competing organizations have published standards that include detailed definitions of "sustainable forestry." There are sustainability standards issued by the Sustainable Forestry Initiative (SFI), Canadian Standards Association (CSA), and the International Organization for Standardization (ISO). SFI, for example, will license the use of its certification label to a licensee that substantiates claims regarding the percentage of fiber obtained from independently certified forests adhering to sustainable forestry practices.
The FTC likely does not want to substitute its judgment here for that of forestry industry experts, and representatives of the forest industry who submitted comments at the workshop generally asked that FTC not disrupt their own efforts at self-regulation. It is likely the FTC will endorse such efforts, and continue to monitor the standard-setting organizations and standard-setting process. The question remains, however, whether the marketing buzzword will retain any meaning beyond those specific applications.
Another thorny area involves the advertising of claims related to carbon offsets and Renewable Energy Credits (RECs). Carbon offsets are the process for mitigating or offsetting the emissions of carbon dioxide, a greenhouse gas. Advertisers sometimes sell products promising to offset the greenhouse gas emitted in the production or use of a product by funding or engaging in projects like wind farms, tree planting, or methane-capture facilities. Advertisers also may promise that the product was produced with RECs offsetting conventional fossil fuel energy sources. RECs are tradable commodities representing proof that a certain amount of electricity was generated from an eligible renewable energy resource.
Although the FTC said, in comments leading up to the workshops, that it believes use of the term "carbon offsets" in advertising could be inherently misleading if the ad does not specify the particular manner in which reductions in carbon emissions have been obtained, adopting a specific standard for such disclosures may be tricky.
As one participant in the workshops pointed out, there are currently four proposed U.S. regional greenhouse gas cap-and-trade programs,2 nearly 30 mandatory state regional energy portfolio standards (and more possibly on the way), and voluntary REC and carbon offset markets, all with varying, and sometimes conflicting requirements. Thus, the standards for what is a "carbon offset" and REC are not uniform, and may not be for many years. Will it be sufficient for an advertiser to include a disclosure referencing one of these evolving programs? For now, this seems the only solution.
Extensive debate also continues to focus on the concept of proving emissions offset "additionality." In other words, would the claimed carbon offset or emission reduction have occurred even if the consumer had not engaged in the transaction with the advertiser? The issues surrounding measurement, verification and proof are highly complex, and the FTC will need to consider a broad array of potential claims.
For example, can an energy company claim in advertising that it is reducing or offsetting carbon emissions based on using more nuclear energy instead of fossil fuels? Can a petroleum refiner make such claims if it employs greenhouse gas sequestration technologies? Can an electronics manufacturer make such claims if it fosters demand-reduction programs by consumers? How does one even count the pounds of carbon offset per transaction?
Debate also surrounds the use of reforestation efforts in order to offset carbon emissions. While live trees remove carbon dioxide from the air, decaying trees re-release that carbon to the atmosphere. Furthermore, not all trees, and not all latitudes, provide equivalent carbon removal. Must an advertiser specify the type and location of the trees planted? Would such a disclosure have any meaningful impact on the average, reasonable consumer?
The FTC also proposes to address claims of general environmental benefit, such as "eco-friendly," "green" and logos that imply such ideas. Under the existing Guides, such claims are permissible, so long as they are accompanied by qualifying language limiting the representation to the attribute or attributes for which the claim can be substantiated. The FTC's current standards here permit an advertiser to tout the "eco-friendly" benefit of one aspect of the product, such as its packaging, while never mentioning the overall environmental impact of product production and use.
Some bottled water sellers promote the use of thinner plastic bottles that use less plastic, thereby reducing the amount of plastic that gets landfilled or recycled. The FTC is now considering whether they can continue to emphasize this "environmental friendly" aspect in marketing, while omitting any mention of the overall environmental costs associated with the production, transportation and disposal of plastic water bottles.
In light of these uncertainties, it seems likely that the FTC will chart a careful course. Since the agency's goal is to preserve and support proper market functioning, it is unlikely to set prescriptive performance requirements that would have the effect of constraining emerging markets for renewable energy credits and carbon offsets. The FTC will likely articulate general standards of substantiation and clarity of disclosure and communication, while reserving the ability to assess each claim on a case-by-case basis in the future.
For marketers, this means that the updated Green Guides will not conclusively answer many important questions. Even after the Guides are reissued, advertisers will have to make judgment calls about substantiation for environmental claims, particularly in the evolving areas of RECs and carbon offsets, lifecycle assessments, and sustainability.
The National Advertising Division
The National Advertising Division (NAD) is an industry self-regulation arbitration forum set up under the auspices of the Council of Better Business Bureaus. The NAD's staff of full time advertising attorneys reviews and decides advertising challenges brought by industry competitors, public interest groups, consumers, and NAD itself through its self-monitoring program. Although the NAD process is voluntary and the NAD cannot directly enforce compliance with its written recommendations, advertisers comply over 95 percent of the time.
The NAD has heard a number of significant and interesting challenges regarding green marketing claims in the last two years, which will have an important impact on how such claims are made in the future.
The NAD's watershed case involving environmental claims involved advertising for household cleaning products. Seventh Generation, Household Cleaning Products, NAD Case #4488 (05/08/2006). Among other things, Seventh Generation claimed in ads that its products "don't create fumes or leave residues that may affect the health of your family or your pets," the way "traditional counterparts can." Seventh Generation's ads also urged consumers to stop using chlorine bleach and to buy Seventh Generation's chlorine-free bleach alternative instead, because chlorine bleach is "toxic."
The ads were challenged by Clorox, which argued that the claims were overbroad and unsupported, citing extensive evidence that sodium hypochlorite bleach, as formulated for home use, is not known to cause adverse health effects. Clorox provided evidence that the vapors of chlorine bleach, and even drinking bleach, are not as harmful as may commonly be believed. As Clorox argued, the LD50 (a measure of acute toxicity) for sodium hypochlorite is equivalent to that for Seventh Generation's competing product.
In its decision, the NAD adopted an approach that characterizes all of its subsequent decisions on environmental claims. The issue, in NAD's view, was less about the benefits of an environmentally friendly product, than about the advertiser's broad and denigrating comparative claims. The NAD ultimately held that Seventh Generation's claims overstated the risks from using sodium hypochlorite bleach, and recommended that the advertiser discontinue express and implied claims that traditional bleaches are hazardous or cause health risks.
A second, more complicated environmental dispute played out in the NAD forum just a few months later. In Born Free, LLC, BornFree Baby Bottles, NAD Case #4626 (2/1/2007), the American Chemistry Council challenged advertising claims for a brand of baby bottles that had been manufactured without bisphenol A (BPA), a chemical that has been alleged to cause endocrine disruption.
The advertiser, citing emerging data regarding the health risks of BPA at low doses, made a variety of claims designed to convince parents that its BPA-free bottles were a "safer," "healthier" and less hazardous choice for babies than bottles made with BPA. The challenger attacked these claims as overbroad, unqualified and unsubstantiated, and argued that the claims were supported merely by the "Precautionary Principle" and not concrete clinical evidence.
In resolving the case, the NAD was faced with a wealth of contradictory data and argument regarding the health risks of BPA. Rather than attempting to resolve in the first instance the broad and difficult question of whether BPA is really harmful to babies, the NAD charted a narrower course.
It found that there was adequate evidence that BPA, as a stand-alone ingredient or chemical, could be reasonably characterized as an endocrine disruptor (based on studies of BPA effects in animals and humans). However, it also concluded that the advertiser had inadequate evidence that BPA could leach from baby bottles at levels found in the published literature to cause this type of harm. It therefore recommended that the advertiser discontinue claims suggesting that polycarbonate bottles containing BPA are comparatively riskier to babies, absent direct, comparative clinical evidence of health outcomes.
Clorox itself more recently became the defendant in an NAD advertising challenge lodged by S.C. Johnson & Son. In that case, SCJ challenged claims for Clorox's new GreenWorks(tm) line of cleaning products in which Clorox advertised in various ways (both in words and through visuals) that "GreenWorks cleaning products work just as well as traditional cleaners." At issue in the case was not the environmental benefit of using the GreenWorks product, which has been endorsed by the Sierra Club in an unusual partnership, but rather the more pedestrian issue of whether the GreenWorks products in fact cleaned as well as ordinary cleaners.
After reviewing reams of competing tests on soil and grease removal, NAD concluded that Clorox could indeed continue to claim parity of cleaning in all but one respect - antibacterial effect. With respect to germ-killing benefit, NAD recommended that, since most consumers have come to expect their hard surface cleaners to kill germs, Clorox should make clear that its product does not necessarily kill germs as well as the more traditional alternatives.
These initial NAD cases suggest that, absent more precise guidance, the NAD does not seem inclined at present to set specific standards governing environmental claims. NAD remains focused on the truthfulness of the product efficacy claims, and seems unwilling to create new or different rules for green marketing.
Lanham Act Litigation
Environmental advertising claims have also been challenged in private false advertising litigation, brought under §43(a) of the Lanham Act. 15 U.S.C. §1125(a).
In one recent notable case, Lexmark, a company that manufactures and remanufactures computer printer toner cartridges, was accused of falsely advertising to consumers that all or most of the printer ink cartridges that they return to Lexmark will be remanufactured or recycled. Static Control Components Inc. v. Lexmark International Inc., 487 F. Supp.2d 861 (E.D. Ky. 2007).
Evidence showed that consumers believed that the program was created to encourage recycling and improve the environment. Yet discovery demonstrated that a great many of the returned cartridges were actually incinerated, and not recycled in the ordinary sense of the word.
The court nevertheless denied a plaintiff's motion for summary judgment against Lexmark, finding that there was a factual dispute to be resolved at trial regarding whether incineration could be properly characterized as "thermal recycling." The court also left for jury decision the issue of whether the "environmentally friendly" message of the cartridge return program was literally or implicitly false.
In a pitched battle of bottled water producers, Vermont Pure sued Nestle, which produces Poland Spring brand bottled water, for allegedly misrepresenting in advertising the purity and source of Poland Spring waters. Vermont Pure Holdings, Ltd. v. Nestle Waters North America Inc., 2006 U.S. Dist. LEXIS 13683 (D.Mass. 2006). Vermont Pure alleged that Poland Spring water had never been extracted from the actual "Poland Spring" in Maine, nor did it derive from "some of the most pristine and protected sources deep in the woods of Maine," as advertised.
Rather, alleged Vermont Pure, the water used in bottling Poland Spring was actually obtained from a series of gravel packed wells from four different places, and also trucked in from undisclosed out-of-state sources. Moreover, the plaintiff alleged, the method of water extraction used by Nestle actually contaminated ground and well water.
Finally, plaintiff also alleged that the bottled water was not "pure" as advertised, but had been found to contain various contaminants, including fecal coliform bacteria.
The court denied Nestle's motions to dismiss these claims on grounds of FDA preemption. The case later settled, with Nestle continuing to deny liability, but paying to Vermont Pure the amount of $750,000.
Another prominent recent litigation involved Merisant's allegations that McNeil Nutritionals, the makers of Splenda(r) brand sucralose sweetener, had misled consumers with its longstanding claim that Splenda was "Made from sugar so it tastes like sugar." Looming large in the dispute was the core allegation that Splenda had been positioned as an "all-natural" sweetener, when in fact it was created through a process involving chlorination of the sugar molecule. Merisant and McNeil settled their case for undisclosed terms, but a separate lawsuit against McNeil, brought by the Sugar Association, is still pending.
Future Trends
Because green marketing claims are appealing to consumers, their use by marketers is likely to increase even further.
Once the FTC reissues the Green Guides, or perhaps even before that time, the FTC will likely begin a series of targeted enforcement actions designed to send a message to marketers that the more egregious falsehoods should be stopped. If past history is any guide, enforcement actions will likely be targeted at a few brand name companies that will draw greater attention to the issue. At the same time, private litigants will continue to police each others' claims through the mechanisms of the NAD and Lanham Act litigation.
Thus, while standards applicable to the currently "hot" environmental claims are still in development, marketers would be well advised to ensure that, as with all advertising claims, they have a reasonable basis for the eco-friendly benefits they tout.
In particular, to the extent that green marketing claims are made for a product, marketers should be careful to indicate, which if any components of the product the benefits relate to and marketers should avoid exaggerating the overall environmental benefits of their products based on the presence of a specific eco-friendly attribute. These are the kinds of claims that have gotten marketers in trouble in the past and are likely to continue to attract scrutiny while more particularized standards are being developed.
Christopher A. Cole and Linda A. Goldstein are partners at Manatt, Phelps & Phillips. Mr. Cole, from the Washington, D.C. office, is a litigator specializing in advertising issues. Ms. Goldstein, from Manatt's New York office, is the chair of the firm's advertising, marketing and media group.
Endnotes:
1. Due to space limitations, we do not address numerous class action complaints regarding allegedly false green marketing claims. There is every reason to believe that these consumer fraud class actions will continue to proliferate.
2. The whole concept of trading credits for greenhouse gases and other pollutants may itself be in turmoil in light of the D.C. Circuit's blockbuster decision in North Carolina v. EPA, No. 05-1244 (July 11, 2008), which vacated and remanded EPA's proposed Clean Air Interstate Rule (CAIR), which would have created a trading program for sources contributing to particulate and ozone pollution.
The marketing community has discovered the power of "green marketing." Over the last year, brands have invested heavily in advertising devoted to promoting products, services and brands as being "eco-friendly," "carbon-neutral" and environmentally "sustainable," among other environmental buzzwords. Consumers are urged to buy "green" not only for their own sake, but also for the very survival of the earth and its climate. For example, they are bombarded with glossy ads touting the environmental improvements in energy production, automobile manufacture and forestry. And, they are offered cleaners and detergents that contain only biodegradable, non-toxic ingredients.
Such ads often seek to convince consumers that they can help the environment, while making little personal sacrifice. The premise is that the consumer can buy the advertised eco-friendly product instead of the environmentally inferior alternative, while obtaining equivalent or better product performance at a comparable price. Presented with a choice between two such comparably performing products, consumers will often choose and even pay more for the product that best fulfills their personal desire to improve the environment. Green marketers have succeeded in adding environmental performance to the list of factors consumers will consider before purchase, even for those products never before marketed with environmental claims.
While green marketing claims can be a highly effective marketing tool, many consumers unfortunately lack the information or knowledge necessary to assess these claims on their own.
Green marketing claims are considered "credence claims," to borrow Federal Trade Commission parlance. In other words, the consumer must take the advertiser's word for it that the product is environmentally friendly. While the average consumers can determine on their own whether a "non-toxic" cleaner removes stains, they are not capable of verifying whether that cleaner kills germs as well as a traditional brand, or whether the multi-syllabic ingredients on the label are really "environmentally friendly."
Advertisers are struggling with the lack of published guidance regarding how to substantiate and accurately describe the environmental benefits of their products. Present regulation and guidance is outdated, having been written at a time when the only common green marketing claims were terms like "recyclable," "biodegradable" and "ozone safe." This first generation of environmental marketing claims was relatively easier to understand, define and support.
Today, not only have technologies and materials changed, but consumer concern for the environment reaches far earlier into the product life cycle. Consumers' purchase decisions may be driven as much by the externalities of product production as by what happens to the product after it is thrown away. Many consumers pay attention to pollution, raw materials, ingredients, and energy consumption both in production and transport to market.
This shift in consumer attitudes, and marketers' intense focus on environmental issues has outpaced the development of regulation. The gap may be narrowing, however, as we discuss below.
First, the Federal Trade Commission is developing updated standards for environmental advertising claims. Second, private industry has begun to police itself in the green marketing area through self-regulation and private standard-setting organizations. And third, private false advertising litigation has kicked into gear against alleged instances of deception.1 We examine each development in more detail below.
FTC Revisions to Green Guides
The Federal Trade Commission polices advertising claims under Section 5 of the FTC Act. This includes most environmental marketing claims.
As with all other advertising claims, green marketing claims must comply with the longstanding rules, articulated in FTC's Deception Policy Statement, that an advertiser must have substantiation for all reasonable interpretations of the advertising claims it makes, and that this substantiation must consist of a competent and reliable basis for the claims.
In 1992, the FTC issued the first edition of its industry guides regarding environmental marketing claims, which is still in effect. Now commonly called the "Green Guides," these guides specifically define terms such as "recyclable" and "biodegradable" and provide examples of how to phrase and substantiate such claims in a variety of situations. Another area the Guides address in detail is claims regarding chlorofluorocarbons and "ozone-friendly" products. This was a hot issue in 1992, on the heels of the Montreal Protocol, but is relatively insignificant today due to the successful phaseout of CFC-depleting products.
More recently, in response to the new wave of green marketing claims such as "sustainable," "eco-friendly" and "carbon neutral," the FTC has begun the process of updating the 15-year-old Green Guides. It has convened a series of public workshops to gather information on current issues and concerns relating to environmental claims.
The first workshop, which took place in January 2008, focused on the entirely new category of green claims relating to global warming issues, such as renewable energy and carbon offsets. The second, a few months later, dealt with green packaging claims. And the third, which took place in July, addressed green buildings and textiles.
Efforts to update the Green Guides may not be easy; illustrating the difficulty is the now-ubiquitous marketing term "sustainable." While this word is often used loosely by marketers to convey a general sense of products or production practices that do not degrade the environment over time, certain industries have adopted very specific and quantifiable definitions.
In the forestry industry, for example, competing organizations have published standards that include detailed definitions of "sustainable forestry." There are sustainability standards issued by the Sustainable Forestry Initiative (SFI), Canadian Standards Association (CSA), and the International Organization for Standardization (ISO). SFI, for example, will license the use of its certification label to a licensee that substantiates claims regarding the percentage of fiber obtained from independently certified forests adhering to sustainable forestry practices.
The FTC likely does not want to substitute its judgment here for that of forestry industry experts, and representatives of the forest industry who submitted comments at the workshop generally asked that FTC not disrupt their own efforts at self-regulation. It is likely the FTC will endorse such efforts, and continue to monitor the standard-setting organizations and standard-setting process. The question remains, however, whether the marketing buzzword will retain any meaning beyond those specific applications.
Another thorny area involves the advertising of claims related to carbon offsets and Renewable Energy Credits (RECs). Carbon offsets are the process for mitigating or offsetting the emissions of carbon dioxide, a greenhouse gas. Advertisers sometimes sell products promising to offset the greenhouse gas emitted in the production or use of a product by funding or engaging in projects like wind farms, tree planting, or methane-capture facilities. Advertisers also may promise that the product was produced with RECs offsetting conventional fossil fuel energy sources. RECs are tradable commodities representing proof that a certain amount of electricity was generated from an eligible renewable energy resource.
Although the FTC said, in comments leading up to the workshops, that it believes use of the term "carbon offsets" in advertising could be inherently misleading if the ad does not specify the particular manner in which reductions in carbon emissions have been obtained, adopting a specific standard for such disclosures may be tricky.
As one participant in the workshops pointed out, there are currently four proposed U.S. regional greenhouse gas cap-and-trade programs,2 nearly 30 mandatory state regional energy portfolio standards (and more possibly on the way), and voluntary REC and carbon offset markets, all with varying, and sometimes conflicting requirements. Thus, the standards for what is a "carbon offset" and REC are not uniform, and may not be for many years. Will it be sufficient for an advertiser to include a disclosure referencing one of these evolving programs? For now, this seems the only solution.
Extensive debate also continues to focus on the concept of proving emissions offset "additionality." In other words, would the claimed carbon offset or emission reduction have occurred even if the consumer had not engaged in the transaction with the advertiser? The issues surrounding measurement, verification and proof are highly complex, and the FTC will need to consider a broad array of potential claims.
For example, can an energy company claim in advertising that it is reducing or offsetting carbon emissions based on using more nuclear energy instead of fossil fuels? Can a petroleum refiner make such claims if it employs greenhouse gas sequestration technologies? Can an electronics manufacturer make such claims if it fosters demand-reduction programs by consumers? How does one even count the pounds of carbon offset per transaction?
Debate also surrounds the use of reforestation efforts in order to offset carbon emissions. While live trees remove carbon dioxide from the air, decaying trees re-release that carbon to the atmosphere. Furthermore, not all trees, and not all latitudes, provide equivalent carbon removal. Must an advertiser specify the type and location of the trees planted? Would such a disclosure have any meaningful impact on the average, reasonable consumer?
The FTC also proposes to address claims of general environmental benefit, such as "eco-friendly," "green" and logos that imply such ideas. Under the existing Guides, such claims are permissible, so long as they are accompanied by qualifying language limiting the representation to the attribute or attributes for which the claim can be substantiated. The FTC's current standards here permit an advertiser to tout the "eco-friendly" benefit of one aspect of the product, such as its packaging, while never mentioning the overall environmental impact of product production and use.
Some bottled water sellers promote the use of thinner plastic bottles that use less plastic, thereby reducing the amount of plastic that gets landfilled or recycled. The FTC is now considering whether they can continue to emphasize this "environmental friendly" aspect in marketing, while omitting any mention of the overall environmental costs associated with the production, transportation and disposal of plastic water bottles.
In light of these uncertainties, it seems likely that the FTC will chart a careful course. Since the agency's goal is to preserve and support proper market functioning, it is unlikely to set prescriptive performance requirements that would have the effect of constraining emerging markets for renewable energy credits and carbon offsets. The FTC will likely articulate general standards of substantiation and clarity of disclosure and communication, while reserving the ability to assess each claim on a case-by-case basis in the future.
For marketers, this means that the updated Green Guides will not conclusively answer many important questions. Even after the Guides are reissued, advertisers will have to make judgment calls about substantiation for environmental claims, particularly in the evolving areas of RECs and carbon offsets, lifecycle assessments, and sustainability.
The National Advertising Division
The National Advertising Division (NAD) is an industry self-regulation arbitration forum set up under the auspices of the Council of Better Business Bureaus. The NAD's staff of full time advertising attorneys reviews and decides advertising challenges brought by industry competitors, public interest groups, consumers, and NAD itself through its self-monitoring program. Although the NAD process is voluntary and the NAD cannot directly enforce compliance with its written recommendations, advertisers comply over 95 percent of the time.
The NAD has heard a number of significant and interesting challenges regarding green marketing claims in the last two years, which will have an important impact on how such claims are made in the future.
The NAD's watershed case involving environmental claims involved advertising for household cleaning products. Seventh Generation, Household Cleaning Products, NAD Case #4488 (05/08/2006). Among other things, Seventh Generation claimed in ads that its products "don't create fumes or leave residues that may affect the health of your family or your pets," the way "traditional counterparts can." Seventh Generation's ads also urged consumers to stop using chlorine bleach and to buy Seventh Generation's chlorine-free bleach alternative instead, because chlorine bleach is "toxic."
The ads were challenged by Clorox, which argued that the claims were overbroad and unsupported, citing extensive evidence that sodium hypochlorite bleach, as formulated for home use, is not known to cause adverse health effects. Clorox provided evidence that the vapors of chlorine bleach, and even drinking bleach, are not as harmful as may commonly be believed. As Clorox argued, the LD50 (a measure of acute toxicity) for sodium hypochlorite is equivalent to that for Seventh Generation's competing product.
In its decision, the NAD adopted an approach that characterizes all of its subsequent decisions on environmental claims. The issue, in NAD's view, was less about the benefits of an environmentally friendly product, than about the advertiser's broad and denigrating comparative claims. The NAD ultimately held that Seventh Generation's claims overstated the risks from using sodium hypochlorite bleach, and recommended that the advertiser discontinue express and implied claims that traditional bleaches are hazardous or cause health risks.
A second, more complicated environmental dispute played out in the NAD forum just a few months later. In Born Free, LLC, BornFree Baby Bottles, NAD Case #4626 (2/1/2007), the American Chemistry Council challenged advertising claims for a brand of baby bottles that had been manufactured without bisphenol A (BPA), a chemical that has been alleged to cause endocrine disruption.
The advertiser, citing emerging data regarding the health risks of BPA at low doses, made a variety of claims designed to convince parents that its BPA-free bottles were a "safer," "healthier" and less hazardous choice for babies than bottles made with BPA. The challenger attacked these claims as overbroad, unqualified and unsubstantiated, and argued that the claims were supported merely by the "Precautionary Principle" and not concrete clinical evidence.
In resolving the case, the NAD was faced with a wealth of contradictory data and argument regarding the health risks of BPA. Rather than attempting to resolve in the first instance the broad and difficult question of whether BPA is really harmful to babies, the NAD charted a narrower course.
It found that there was adequate evidence that BPA, as a stand-alone ingredient or chemical, could be reasonably characterized as an endocrine disruptor (based on studies of BPA effects in animals and humans). However, it also concluded that the advertiser had inadequate evidence that BPA could leach from baby bottles at levels found in the published literature to cause this type of harm. It therefore recommended that the advertiser discontinue claims suggesting that polycarbonate bottles containing BPA are comparatively riskier to babies, absent direct, comparative clinical evidence of health outcomes.
Clorox itself more recently became the defendant in an NAD advertising challenge lodged by S.C. Johnson & Son. In that case, SCJ challenged claims for Clorox's new GreenWorks(tm) line of cleaning products in which Clorox advertised in various ways (both in words and through visuals) that "GreenWorks cleaning products work just as well as traditional cleaners." At issue in the case was not the environmental benefit of using the GreenWorks product, which has been endorsed by the Sierra Club in an unusual partnership, but rather the more pedestrian issue of whether the GreenWorks products in fact cleaned as well as ordinary cleaners.
After reviewing reams of competing tests on soil and grease removal, NAD concluded that Clorox could indeed continue to claim parity of cleaning in all but one respect - antibacterial effect. With respect to germ-killing benefit, NAD recommended that, since most consumers have come to expect their hard surface cleaners to kill germs, Clorox should make clear that its product does not necessarily kill germs as well as the more traditional alternatives.
These initial NAD cases suggest that, absent more precise guidance, the NAD does not seem inclined at present to set specific standards governing environmental claims. NAD remains focused on the truthfulness of the product efficacy claims, and seems unwilling to create new or different rules for green marketing.
Lanham Act Litigation
Environmental advertising claims have also been challenged in private false advertising litigation, brought under §43(a) of the Lanham Act. 15 U.S.C. §1125(a).
In one recent notable case, Lexmark, a company that manufactures and remanufactures computer printer toner cartridges, was accused of falsely advertising to consumers that all or most of the printer ink cartridges that they return to Lexmark will be remanufactured or recycled. Static Control Components Inc. v. Lexmark International Inc., 487 F. Supp.2d 861 (E.D. Ky. 2007).
Evidence showed that consumers believed that the program was created to encourage recycling and improve the environment. Yet discovery demonstrated that a great many of the returned cartridges were actually incinerated, and not recycled in the ordinary sense of the word.
The court nevertheless denied a plaintiff's motion for summary judgment against Lexmark, finding that there was a factual dispute to be resolved at trial regarding whether incineration could be properly characterized as "thermal recycling." The court also left for jury decision the issue of whether the "environmentally friendly" message of the cartridge return program was literally or implicitly false.
In a pitched battle of bottled water producers, Vermont Pure sued Nestle, which produces Poland Spring brand bottled water, for allegedly misrepresenting in advertising the purity and source of Poland Spring waters. Vermont Pure Holdings, Ltd. v. Nestle Waters North America Inc., 2006 U.S. Dist. LEXIS 13683 (D.Mass. 2006). Vermont Pure alleged that Poland Spring water had never been extracted from the actual "Poland Spring" in Maine, nor did it derive from "some of the most pristine and protected sources deep in the woods of Maine," as advertised.
Rather, alleged Vermont Pure, the water used in bottling Poland Spring was actually obtained from a series of gravel packed wells from four different places, and also trucked in from undisclosed out-of-state sources. Moreover, the plaintiff alleged, the method of water extraction used by Nestle actually contaminated ground and well water.
Finally, plaintiff also alleged that the bottled water was not "pure" as advertised, but had been found to contain various contaminants, including fecal coliform bacteria.
The court denied Nestle's motions to dismiss these claims on grounds of FDA preemption. The case later settled, with Nestle continuing to deny liability, but paying to Vermont Pure the amount of $750,000.
Another prominent recent litigation involved Merisant's allegations that McNeil Nutritionals, the makers of Splenda(r) brand sucralose sweetener, had misled consumers with its longstanding claim that Splenda was "Made from sugar so it tastes like sugar." Looming large in the dispute was the core allegation that Splenda had been positioned as an "all-natural" sweetener, when in fact it was created through a process involving chlorination of the sugar molecule. Merisant and McNeil settled their case for undisclosed terms, but a separate lawsuit against McNeil, brought by the Sugar Association, is still pending.
Future Trends
Because green marketing claims are appealing to consumers, their use by marketers is likely to increase even further.
Once the FTC reissues the Green Guides, or perhaps even before that time, the FTC will likely begin a series of targeted enforcement actions designed to send a message to marketers that the more egregious falsehoods should be stopped. If past history is any guide, enforcement actions will likely be targeted at a few brand name companies that will draw greater attention to the issue. At the same time, private litigants will continue to police each others' claims through the mechanisms of the NAD and Lanham Act litigation.
Thus, while standards applicable to the currently "hot" environmental claims are still in development, marketers would be well advised to ensure that, as with all advertising claims, they have a reasonable basis for the eco-friendly benefits they tout.
In particular, to the extent that green marketing claims are made for a product, marketers should be careful to indicate, which if any components of the product the benefits relate to and marketers should avoid exaggerating the overall environmental benefits of their products based on the presence of a specific eco-friendly attribute. These are the kinds of claims that have gotten marketers in trouble in the past and are likely to continue to attract scrutiny while more particularized standards are being developed.
Christopher A. Cole and Linda A. Goldstein are partners at Manatt, Phelps & Phillips. Mr. Cole, from the Washington, D.C. office, is a litigator specializing in advertising issues. Ms. Goldstein, from Manatt's New York office, is the chair of the firm's advertising, marketing and media group.
Endnotes:
1. Due to space limitations, we do not address numerous class action complaints regarding allegedly false green marketing claims. There is every reason to believe that these consumer fraud class actions will continue to proliferate.
2. The whole concept of trading credits for greenhouse gases and other pollutants may itself be in turmoil in light of the D.C. Circuit's blockbuster decision in North Carolina v. EPA, No. 05-1244 (July 11, 2008), which vacated and remanded EPA's proposed Clean Air Interstate Rule (CAIR), which would have created a trading program for sources contributing to particulate and ozone pollution.
Saturday, September 13, 2008
New V-Carbon "Stamp of Approval"
Earlier this week, we examined a buyer's guide for evaluating developers of voluntary carbon offset projects, and now comes CarbonOffsetList.org, a guide that lists all projects that meet nine criteriathat Environmental Defense Fund believes make an offset trustworthy.
More than 70 projects have been submitted to date, but the site debuted with just eleven projects and is designed to evolve as new projects meet the criteria.
Not a New Standard
EDF says the approach does not represent a new standard because it is results-oriented and not procedure-oriented.
"Our approach focused on the environmental integrity of the projects that were submitted for review and the ability to demonstrate measurable and verifiable proof of greenhouse gas reductions – rather than specific project types or technologies," says Ron Luhur, EDF Carbon Markets Specialist.
"Being technology and standard neutral was important to us because we believe that we can't afford to overlook any credible emission reductions given the urgency of the climate crisis."
As a result, the list could include projects from controversial technologies that many standards eschew – such as geological sequestration.
"We basically say that projects employing technologies like that have to demonstrate that they have taken steps to account for reversal," says Luhur. "Rather than disregard the technology, we say you can deploy it under an extremely watchful eye."
The Living List
Of the eleven debut projects, eight achieve reductions through landfill gas destruction – largely because such projects are easy to verify.
"We're looking for anything that generates a real and measurable reduction," says Luhur. "The proposals we received are everything from methane to geological sequestration and forestry. Some won't make the list, but some projects are just too early in the development phase to get listed, while others are almost there but still need some documentation."
As more projects meet the nine criteria – which were established through a best practices review process involving a committee of external experts in the fields of science and policy – they will also be posted on the site.
"If all goes according to plan, these offsets will sell out, and we'll have to come up with a new list again very soon," says Luhur.
In fact, this is not the first time EDF created such a list. Several years ago, the non-profit, with assistance from Environmental Resources Trust created a "short list" of carbon offset providers that met their decision criteria. The list, while still heavy on methane destruction, included a more diverse set of projects, including credits from geological sequestration. This year the team focused on screening projects rather than offset providers, since most providers have a portfolio of credits from varying sources.
Voluntary vs. Pre-Compliance
Luhur adds that the criteria were developed to create trustworthy voluntary credits, and not to conform to any existing or evolving compliance regimes.
"If the criteria resemble those of state regimes, it's only because the goals are similar and not because we are trying to build a pre-compliance portal," he says. "We want to make sure that an offset really does represent an emission reduction, and compliance regimes have the same goal – although we have taken a lot of the best thinking from some of the compliance regimes and from the voluntary standards."
Steve Zwick is managing editor of the Ecosystem Marketplace. He can be reached at SZwick (at) EcosystemMarketplace.com.
First published: September 11, 2008
Tuesday, September 9, 2008
Pay a Voluntary Carbon Market, Make Green Conscience!
The voluntary carbon market is a concept that is catching on in developed countries and now Sushil Kumar, a teacher at the Indian Institute of Management-Lucknow, has calculated exactly how much ordinary Indians and even big corporates should contribute to it to ease their green conscience.
For instance, if one travels about 5,000 km a year in a petrol-driven car, the vehicle emits a little less than a tonne of the world's main greenhouse gas (GHG), carbon dioxide. Again, one can compensate by paying Rs.800.
This money can go into schemes like planting trees, developing energy from renewable sources, improving energy efficiency and so on.
"When you pay for offsetting your emissions, you fund a project that reduces greenhouse gas emissions, most likely in India or China," Kumar said on phone from Lucknow.
"These projects generate 'credits' that are verified and certified by a standards organisation which guarantees that the (GHG) emission reductions have actually taken place.
"These projects include energy efficiency schemes, reforestation or afforestation programmes, industrial gas capturing plants and methane flaring plants among others.
"This creates an 'emissions trading market' where the commodity is 'reduced GHG emissions', and the quality is measured by verification standards used and the sustainable development that has occurred from the project."
Links to voluntary carbon markets are available over the internet.
Since the world became more aware of climate change and its perils, people have been asking what they can do. They cannot stop flying or driving around, though they know these activities are adding to the dangerous concentration of carbon dioxide in the atmosphere. And hence the voluntary carbon market.
Kumar has been calculating the amount of greenhouse gas generated by running various appliances - what is called the 'carbon footprint' of that activity.
"Using a 2.5-tonne air-conditioner for an hour leads to 3 kg of carbon emissions," he informed. "Similarly, the average sized hot water geyser emits 3.3 kg and the microwave oven 1.3 kg of carbon dioxide per hour."
"You can now neutralise your individual carbon footprints generated through various activities," Kumar added.
"Some online companies even offer gift packages for neutralising certain events like birthday or wedding parties. These packages also make a great gift for friends and family."
Moving from the individual to the corporate level, Kumar said some Indian companies had started to measure their carbon footprints and do something about it, but most had a long way to go.
"Telecom company Bharti Airtel saves 96 trees a year by e-billing, uses video-conferencing, thereby avoiding travel, and has created energy efficient 'green shelters' at around 7,000 sites," he said.
"Some more Indian corporate leaders have begun to take matters seriously. Among these are ONGC, ITC, Nestle, Essar Oil, Tata Steel, Wipro, JSW Steel, IDBI, ICICI, and Rabo Bank. They have announced plans for emissions trading. "
However, Kumar said, "Most firms need to overcome their tendency of short-term thinking and focus more on deeprooted institutional changes."
Kumar referred to a recent KPMG-CII survey, in which Indian firms were asked if they had any goals to reduce their carbon footprints by 2010. Forty-one per cent replied in the affirmative, but 38 per cent said they did not have any such plan.
"In developed countries, most companies measure and report their carbon footprints and also announce the actions they plan to take to reduce them," he pointed out.
"Indian firms will face increasing pressure to comply with international environmental standards from their global partners," Kumar said.
Green Building Standards Under Construction
http://www.enn.com/lifestyle/article/38034
he world's leading certification system for sustainable architecture is set to undergo its most sweeping changes in 2009. The proposed revisions encourage designs that would reduce a building's impact on global climate change.
Leadership in Energy and Environmental Design, commonly known as LEED, has become the standard for green building design since the U.S. Green Building Council (USGBC), a nongovernmental organization, crafted the rating system eight years ago. Architecture that voluntarily improves energy efficiency, water conservation, and indoor air quality has surged in popularity in the past two years, especially in Europe and major U.S. cities.
According to USGBC's August statistics, more than 2,400 commercial and residential buildings worldwide are LEED certified, and nearly 14,000 are under way. The green building movement has the potential to significantly reduce global greenhouse gas emissions. In the United States, about 40 percent of all energy is used to heat, light, and cool residential and commercial buildings, according to the U.S. Department of Energy's Energy Information Administration.
Minimum LEED certification, however, does not necessarily guarantee environmental improvements. Developers who purchase environmentally related products off a LEED-supplied checklist may produce a LEED-certified building, but the building's future impact on energy and resource use is unknown. The proposed revisions are the beginning of a transition toward buildings that earn their green marks based on performance rather than eco-marketing.
The current LEED system allocates a maximum of 69 points for various environmental quality improvements. A building that receives 26 points is certified, and more points are necessary to receive the higher rankings of silver, gold, and platinum. While costly improvements such as solar panels are likely to boost a building's rankings, all categories are given equal weight, making some improvements less effective than others.
"LEED has been frequently criticized for not having a solid rationale for allocating credits," said Jerry Yudelson, a Tucson-based architect who teaches LEED-certification workshops. "The classic example is you get one point for putting in bicycle lockers and showers and one point for saving 7 percent of energy. Are those equivalent benefits?"
The new model emphasizes designs that the USGBC considers most beneficial for today's global environment. Improvements that reduce greenhouse gas emissions and burn fewer fossil fuels account for 34 of the 100 points. While a building requires only 40 points to receive certification, factors including access to transportation and energy efficiency can no longer be avoided, said Scot Horst, chair of the LEED steering committee. "We are saying climate change is the most important thing, so we put the most points to credits that deal with climate change," said Horst, president of the architecture consultancy 7Group. "If you want to get certified, you have to focus on those areas."
The new criteria place greater focus on the environmental impact of a building's entire life cycle. Contributions to eutrophication - the creation of oxygen-free dead zones in polluted water bodies - and "ecotoxicity" are now emphasized. Eventually, the USGBC envisions a system that assesses lifecycle impacts by measuring a building's pollutants, rather than being based solely on the attributes of building materials.
The 2009 LEED standards also plan to include more mandatory designs - most notably water efficiency. Building requirements, however, are not the same in all climates, and the stricter rules may further complicate efforts to streamline the process. Green developers in arid regions, for instance, struggle to balance air ventilation with energy conservation: if more hot air enters a building, more air conditioning is demanded.
To compensate for regional differences, the proposed standards grant local chapters "bonus points" that can be allocated toward design issues that would aid certification in that area. "This is the best way possible to give responsibility to chapters - they're the ones who know the local issues - without jeopardizing the consistency of LEED overall," Horst said.
But several architects still consider the system lacking. "There is a tension between having a national system... and yet still allowing a lot of regional differences," said Yudelson, who chairs the USGBC's annual conference committee. "[A solution] is for LEED 2012... We're not ready to make that big of a leap."
Regardless of the policy changes, some critics say a system like LEED does not do enough to improve the world's environmental woes. Architect Jonathan Ochshorn, an associate professor atCornell University, said LEED-certified buildings are anecdotal examples of improvements that ultimately serve a corporation's profit, not the environment. "LEED in general is a way for institutions and corporations to collect points from a public relations standpoint," Ochshorn said. "The world isn't getting any better because of LEED."
The number of green buildings constructed remains relatively small - about 2 percent, according to a 2006 Green Building SmartMarket Report - due to higher building costs and the often stressful complexity of the certification system. To simplify the process, independent certifiers [PDF] have been hired to handle the growing number of certification requests. The costs are also beginning to fall as energy prices climb and green designs become mainstream.
"The changes in LEED are definite improvements, I think everyone is behind them, but we also need to improve the system," Yudelson said. "We need results, not just a certification on a building."
Ben Block is a staff writer with the Worldwatch Institute. He can be reached atbblock@worldwatch.org.
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