We’ve commented often in this space about how virtually everyone is jumping on the green marketing bandwagon. I couldn’t help noticing that fact even while on vacation. Standing in line at the beach to buy ice cream for my kids a poster implored me to ask for a cone instead of a dish because ice cream cones were the “environmentally cone-scious” choice. (Thankfully, bad puns don’t violate Section 5 or else we’d be in trouble here as well.) Ice cream cones have an obvious environmental advantage over dishes and plastic spoons when it comes to waste disposal, but as many of you no doubt know, you can’t always stop the inquiry at the most obvious. If ice cream cones were made from a scarce plant found only in rain forests then they might not be better for the environment in that regard than a plastic spoon or cardboard dish. A general, unqualified claim of environmental superiority likely has to be true in all respects, not just one or two.
Of course, ice cream cones aren’t superior to dishes and spoons when it comes to making me fat or, even more importantly these days, causing obesity in kids. However, as a general rule, if you’re going to tout the benefit of a product you generally only need to disclose any downsides if they are closely related to the advertised benefit. For example, in its Food Advertising Enforcement Policy Statement, the FTC notes that if you market a product as low in cholesterol it may be misleading to omit the fact that the food is high in sodium since sodium can lead to many of the same health problems that low cholesterol is designed to avoid. So will it be the environment or your waistline, or maybe just go with a kid size scoop on a cone and have it all. Either way, the advertiser probably doesn’t have a duty to inform your choice.