Green Patent Blog: Fiji Defeats “Unreasonable” Consumer in Green Drop Bottle Battle

Green Patent Blog: Fiji Defeats “Unreasonable” Consumer in Green Drop Bottle Battle

In a previous post I wrote about a consumer class action against SC Johnson, accusing the producer of Windex of misleading consumers by using a GREENLIST label that allegedly implies objective third party certification of environmentally friendly ingredients in its cleaning products.

Ayana Hill recently filed a similar proposed class action suit against the Fiji Water Company (Fiji) in which she alleged that the "Green Drop" design (shown below) on Fiji's water bottles misrepresents the product as environmentally superior to other bottled water and connotes approval by independent, third-party organizations.

Hill also cited Fiji's "Every Drop is Green" marketing slogan and its fijigreen.com web site as evidence of deception.

Hill supported her allegations by referencing the U.S. Federal Trade Commission's (FTC) "Green Guides," which provide general principles for advertising environmentally friendly aspects of products and services and lay out specific examples of impermissible advertising claims.

The trial court dismissed Hill's complaint, and last month the First District Court of Appeals of California affirmed the decision of the lower court.

The key to the appellate court decision was the "reasonable consumer" standard.  The FTC Act and California state consumer protection laws require a plaintiff to show potential deception of "a consumer acting reasonably in the circumstances" and "the ordinary consumer within the larger population," respectively.

What are the characteristics of a "reasonable" or "ordinary" consumer?  Well, the appeals court explained what they are not: 

...the standard is not a least sophisticated consumer, unless the advertising is specifically targeted to such a consumer 

Nor do we test the impact on the unwary consumer...

...in these days of inevitable and readily available Internet criticism and suspicion of virtually any corporate enterprise, a reasonable consumer also does not include one who is overly suspicious.

The appeals court framed the central question in the case (and answered it) this way:

Does the green drop on Fiji water bottles convey to a reasonable consumer in the circumstances that the product is endorsed for environmental superiority by a third party organization?  No.

According to the court, nothing about the green drop symbol implies any association with or endorsement by a third party organization:

[The green drop symbol] bears no name or recognized logo of any group, much less a third party organization, no trademark symbol, and no other indication that it is anything but a symbol of Fiji water.

The appellate court found the green drop design to be much less suggestive of a seal of an environmental organization than a globe icon used in an FTC Green Guides example and a logical symbol for branding water. 

The appeals court also contrasted the green drop with SC Johnson's GREENLIST label, which the court noted made express representations of environmental superiority and suggested an independent source by identifying the name as a rating system (SC Johnson's motion to dismiss was denied last year).

Finally, the overall context mitigates against implication of third party endorsement, the court reasoned, because the green drop appears next to the web site name fijigreen.com, which associates the symbol with Fiji, not a third party organization.

For these reasons, the court held the green drop symbol would not mislead a reasonable consumer about third party endorsement or environmental benefits of Fiji's botted water:

we hold - and it is all we hold - that no reasonable consumer would be misled to think that the green drop represents a third part organization's endorsement or that Fiji water is environmentally superior to that of the competition.

This is an interesting decision for a number of reasons.  What immediately struck me was the exclusion of the "overly suspicious" from the definition of the ordinary consumer. 

Isn't the large and growing segment of green-minded consumers that Fiji is targeting with the green advertising claims naturally very discerning and more suspicious of claims of environmental benefits than other consumers?  There's even a name for this market segment - LOHAS consumers.

The appeals court implied that a particular type of consumer could be used as the standard when it said "the standard is not a least sophisticated consumer, unless the advertising is specifically targeted to such a consumer."  Much green branding, Fiji's included, arguably is targeted to the LOHAS consumer. 

Perhaps when analyzing claims of greenwashing in advertising directed at LOHAS, or green-minded, consumers the courts should use an "ordinary green consumer" standard that takes into account both the green sophistication and green skepticism of this consumer group.

After all, advertisers promoting green brands and communicating green marketing messages are trying to appeal to the environmental sophistication of these consumers.  

Shouldn't the truth of that advertising be measured against the same sophisticated standard of the consumers most inclined to evaluate it as part of their purchasing decisions?

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