Can You Promote a Product as Being "Reef Friendly" if it Contains Chemicals That Harm Reefs?

The Hain Celestial Group makes a variety of sunscreens that it promotes at "reef friendly."  What does "reef friendly" actually communicate to consumers?  That was the issue in a recent lawsuit in federal court in California. 

A consumer sued Hain Celestial under California law, alleging that the "reef friendly" claim that appears on packaging for the company's Alba Botanica sunscreen is misleading.  She argued that the claim is misleading because the product contains a variety of chemicals -- including avobenzone, octocrylene, homosalate, and octyl salicylate -- that are known to harm coral reefs and marine life.  

So, if that's true, what was Hain Celestial's basis for making a "reef friendly" claim?  In 2018, Hawaii banned the use of two chemicals, oxybenzone and octinoxate, in sunscreens, based on the Hawaii legislature's determination that they were harmful to coral reefs.  Hain Celestial's argument, then, is that the sunscreen is "reef friendly" since, consistent with Hawaiian law, it doesn't contain these two chemicals. 

In California, false advertising and similar claims are governed by the "reasonable consumer" standard.  This standard requires more than a mere possibility that a claim "might conceivably be misunderstood by some few consumers viewing it in an unreasonable manner."  Rather, it must be "probable that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled."  

Hain Celestial moved to dismiss, arguing that the plaintiff had failed to plausibly allege that its use of "reef friendly" is deceptive and is misleading to a reasonable consumer.  The company argued that the claim, when viewed in context, will be understood by consumers only to communicate that the product doesn't contain oxybenzone and octinoxate.  The company argued that this is the only reasonable take-away, in light of the fact that the product is marketed as "hawaiian suncreen" and that the packaging doesn't state that it's free of other chemicals that may be harmful to reefs.  The company also argued that the back of the packaging lists the specific chemicals that are included in the product. 

In response, the plaintiff argued that the fact that the product doesn't contain two harmful chemicals doesn't make the claim truthful if the product contains other chemicals that are, in fact, harmful to reefs.  The plaintiff also argued that the disclosure of the other chemicals on the back of the packaging shouldn't immunize it from liability for the false claims it makes on the front of the product. 

The court denied the motion to dismiss, finding that "whether or not a reasonable person would be misled by the 'Reef Friendly' label on Defendant's Products is not fit for determination on a motion to dismiss in this case."  The court explained that, accepting as true the allegations in the complaint, " it is plausible that statements on the Products' packaging could deceive a reasonable consumer."  (This decision is consistent with another recent decision from a federal court in California on "reef friendly" claims.)

On one level, there's nothing all that remarkable about this case.  The court simply determined that the question of how consumers will interpret a "reef friendly" claim can't be determined on a motion to dismiss.  But, as regulators (and self-regulatory organizations) in the U.S. and around the world are turning their attention to environmental marketing claims, this case highlights some issues that most marketers should be thinking about right now. 

In the United States, the starting point for evaluating the legality of green marketing claims often begins with the FTC's Guides for the Use of Environmental Marketing Claims.  The Green Guides are currently in the process of being revised and the FTC has sought public comment on potential updates to them.  While the Green Guides will almost certainly be updated to incorporate newer, emerging environmental marketing claims and to reflect changes in consumer understanding of other claims, many of the principles underlying the Green Guides are well-established and should be taken into account whenever you're developing green marketing claims.  

One of the core principles in the Green Guides is that it's generally deceptive to claim that a product offers a general environmental benefit (such as "eco-friendly"), since general claims are "difficult to interpret and likely convey a wide range of meanings."  When making a general environmental benefit claim, the FTC recommends that marketers qualify the claim to explain the specific environmental benefits being provided.  Here, Hain Celestial's motion to dismiss may have looked very different if its "reef friendly" claim was accompanied by a clear and conspicuous statement that explained why the product is, in fact, good (or better) for the environment.  

There are some other important recommendations from the Green Guides that are relevant as well.

When making "non-toxic" claims, the FTC says that the marketer should be able to substantiate -- with competent and reliable scientific evidence -- that the product is non-toxic to both humans and the environment.  Here, while the marketer may have eliminated certain ingredients that were toxic to reefs, apparently it didn't eliminate all of them.  In that situation, the FTC would likely expect the marketer to fully explain that. 

And, when making "free of" claims, the FTC says that marketers shouldn't claim that a product is free-of a particular substance if the product contains other substances that "pose the same or similar environmental risks as the substance that is not present."  In other words, don't claim that you're solving a problem when you're really not solving it. Here, it may very well be that Hain Celestial updated its product to cause less harm to reefs, but the Green Guides suggest that the company should have been clearer about whether the product still does have some adverse impact on them.

Anderberg v. The Hain Celestial Group

, 2023 WL 419268 (S.D. Cal. 2023).