Can You Promote a Category of Products as "Clean" if They Contain Harmful Ingredients?

In its stores and online, Target categorizes some of the products that its sells as “Target Clean.”  According to Target, if a product is identified by the bright green Target Clean logo, it means that “the product is formulated without a group of commonly unwanted chemicals that can be found in products we use regularly.” 

A group of consumers sued Target, alleging that the retailer misled consumers though the use of its Target Clean logo because (among other things) products labeled as “Target Clean” still contain other ingredients that are equally or more harmful to humans than the banned ingredients.  In other words, the plaintiffs are arguing here that the products labeled as “Target Clean” are not actually clean, since they contain unwanted or harmful ingredients. 

According to the plaintiffs, the Target Clean logo is sometimes attached to individual shelf labels next to particular products.  It's also used on larger display signs that offer a short explanation of the Target Clean program.  And, on Target's website, the retailer has a more detailed information about the program. 

Target moved to dismiss, arguing (among other things) that the plaintiffs had failed to plausibly allege that a reasonable consumer could be deceived by the Target Clean program.  The court allowed the case to proceed, noting that “this ‘reasonable consumer’ test is in immediate tension with the early stage of this litigation.  In a variety of contexts, courts have observed that a judge's role in assessing whether a representation or statement is misleading or deceptive implies a factual inquiry that is often inappropriate for purely legal resolution.”  

While the case is still at its very early stages, and there's no telling how it will be resolved, the court's decision here raises some important issues to consider when retailers decide to categorize the products that they sell. 

Target argues that consumers won't be misled by the Target Clean logo, even if it's not accompanied by any explanation of what the logo means.  Target argues that, the “Target Clean icon alerts consumers to the fact that Target attaches a specific definition to its branded term” and that “reasonable consumers would view Target's posted definitions" to learn about what the logo stands for.  At least at this stage in the case, the court wasn't willing to accept the argument that consumers, when viewing the term, would understand that “Target Clean” means something specific and that they would necessarily seek out further information to figure out what that meaning is. 

The court attaches great significance here to the fact that Target is positioning itself between the  product manufacturer and the consumer, noting that “a consumer might reasonably assume that Target had independently made an assessment that some of its products are cleaner than others in a way that is meaningful to its customers.”  

The court also considers the argument that consumers won't understand the “Target Clean” logo to communicate that all harmful ingredients were banned, just that certain ones had been.  In other words, the argument is, “no reasonable consumer could be misled by the representation that Target Clean Beauty Products do not contain certain specified harmful ingredients, even if Plaintiffs are correct that the products do contain other similarly harmful ingredients.”  

While the court notes, again, that it couldn't decide this issue at this stage of the proceeding, the court pointed to the FTC's Green Guides as evidence of the reasonableness of the plaintiffs arguments. The court pointed to the FTC's guidance that, “a truthful claim that a product, package, or service is free of, or does not contain or use, a substance may nevertheless be deceptive if . . . the product, package, or service contains or uses substances that pose the same or similar environmental risks as the substance that is not present.”  

What are some important takeaways for advertisers who are planning to categorize their products with environmental or other benefits?  

First, choose the name of the program carefully.  If you pick a name that communicates specific claims, you're going to have to substantiate the reasonable take-aways from that claim.  For example, this decision would have looked very different if Target was using a “Target Select” logo rather than a “Target Green” logo. 

Second, if you are creating a program where you categorize your products, whenever you use the program name, it's always going to be best to disclose clearly and conspicuously, in close proximity to the name, what the specific features of the program are.  If the “Target Clean” logo had incorporated language that explained that it means that a certain number of ingredients are not used in the products (or had even identified those ingredients), this decision would have looked very different. 

Third, one of the core principles underlying the FTC's Green Guides is that you shouldn't promote an environmental benefit if consumers won't actually realize that benefit.  For example, don't promote that a product is biodegradable if the product won't actually degrade in a reasonable period of time, taking into account the usual way that the product is disposed of.  Here, the challenge that Target has to wrestle with is, how does it promote the fact that these products don't have certain harmful ingredients (which, presumably, is a good thing) when the products may have other ingredients that cause similar harms.  One solution may be, and this is likely the best solution, is to limit a “Clean” type certification to products that don't have any harmful chemicals at all.  Another solution may be to use a name for the program that communicates a reduction in harmful ingredients, as opposed to one that could communicate that all of them have been eliminated.  The key point here, though, is that if you're creating a program like this, you've got to ensure that both the express claims (that specific ingredients have been eliminated) and the implied claims (that other similar ones have been eliminated as well) are substantiated.  And, if you're communicating broader claims than you can substantiate, it's time to revise the claim (or change the program).

Boyd v. Target, 2024 WL 4287669 (D. Minn. 2024).