Greenwashing vs ‘Greenhushing’ – how can businesses get it right?

Greenwashing has become a popular buzzword to describe how companies potentially mislead consumers through advertising and messaging by making environmental claims about products or services that do not stand up to scrutiny. The latest casualty to face allegations of greenwashing is clothing retailer H&M, who in the US are being sued in relation to its “Conscious Collection” clothing line. Whilst it has been marketed as sustainable, the clothes sold in this collection are in fact made using polyester or recycled plastics, both of which are harmful to the environment. By labelling the clothes as a ‘conscious’ choice and charging a premium to its customers, it is claimed that this is a misrepresentation and an attempt at greenwashing by the company. Purchasing environmentally friendly choices has become increasingly important to consumers in recent years as public awareness of the climate crisis has risen. By agreeing to pay this premium, especially with the cost-of-living crisis, consumers expect environmental claims to be true. The backlash against a company found to be greenwashing can be enormous, damaging the company’s reputation, reducing consumer confidence and negatively impacting its bottom line. Whilst these consequences can have long term effects for the individual company, the threat of a backlash has caused a noticeable ripple effect across the retail industry, as fears grow about the repercussions of alleged greenwashing. Companies face great pressure to invest time and resources into Environmental Social and Governance (ESG) policies and be transparent on how their carbon neutral and sustainability goals are achieved. However, as the climate of fear for being caught out grows, many businesses are reacting by choosing not to promote their “green” activities or results altogether to avoid public scrutiny, in a developing trend known as ‘Greenhushing’. Greenhushing is bad for consumers, retailers and the industry as a whole – if businesses keep quiet or under-promise on their environmental pledges, this sets a trend in the marketplace for other businesses to follow suit, taking the green agenda out of the public sphere once more. This withdrawal will have a negative impact on the industry, as publicising green measures often acts as a means of sharing ideas and allows brands to easily implement each other’s strategies, raising the collective standards of what is expected for the entire industry. With it appearing as if businesses are caught between a rock and a hard place, how can accusations of greenwashing or greenhushing be avoided? As it stands, there are currently no laws in the UK that specifically address greenwashing and no legal definitions on what basis you can describe a product as “eco-friendly” or “green”. The Advertising Standards Authority (ASA), the UK’s advertising regulator, are undertaking increasing numbers of investigations into complaints that businesses are misleading consumers on claims of environmental and green products and are discovering that many businesses simply do not have the evidence to substantiate these claims. With the Government’s net zero ambition for 2050 fast approaching and the public watching more closely than ever before, what can businesses do to promote their green credentials, without falling foul of scrutiny by consumers or regulators? The most important step when trying to promote environmental claims is to be as accurate and transparent as possible, and hold evidence that objectively substantiates any claims to ensure that they stand up to scrutiny should the business be accused of greenwashing. Businesses should also ensure that all marketing strategies are reviewed by an expert before going live in order so that they are compliant with UK advertising regulations. Advertising, marketing and branding are often where companies fall down in terms of misleading consumers on their claims regarding environmental products, as the recent rulings by the ASA have clearly demonstrated. Additionally, businesses should endeavour to keep up to date with relevant regulatory bodies. Greenwashing is a relatively new concept, and guidance and resources are continually being released by these bodies to help retailers maintain transparency and accuracy around their products. While this recent slew of greenwashing claims may lead to a smaller number of products labelled ‘environmentally friendly’ or similar in the short-term, ultimately the climate crisis and retailers’ impact on it are now firmly at the forefront of consumers’ minds. Brands should always be careful about claims made around products and services to ensure they are accurate, truthful and not misleading, however, fear of greenwashing should not lead to greenhushing. Neither the regulators nor in all likelihood the majority of the public would want to see businesses being discouraged from taking positive measures to combat climate change. Charlotte Cassells, commercial and IP solicitor at law firm, Shakespeare Martineau