Green Building Law Blog : Green Building Lawyer & Attorney : Shari Shapiro: Calliope Communications, LLC

The Home and Garden Channel (HGTV) is the top rated cable network on the weekends.  At the end of every remodeling show on HGTV is the big reveal, dramatic "before and after" footage of the transformation of the kitchen or bedroom.

How does this relate to EPA?  On my Muse of Eloquence blog (which deals more generally with policy and communications issues), I discussed the Democratic losses last week, diagnosing it as a communications problem, not a policy problem.  

This is doubly true with respect to the Environmental Protection Agency.  Specifically, the Environmental Protection Agency needs to improve its brand image, not just among young voters (or, non-voters, as is more accurate), but with voters that turn out on a regular basis.  To do so, it must make the impact of environmental regulation personal.

Fortunately, the EPA has a lot of "before and after" images to use in its advertising campaign.  For example, above is a picture of air pollution in Los Angeles in 1968, before the Clean Air Act was passed in 1970, and 2005, 35 years later (Image courtesy of the Cooperative Institute for Research in Environmental Sciences (CIRES) at the University of Colorado Boulder).

CIRES conducted a study on what caused the reduction in air pollution.  Although population has tripled in LA since 1968, according to lead study author Ilana Pollack: 

LA’s air has lost a lot of its ‘sting,' Our study shows exactly how that happened, and confirms that California’s policies to control emissions have worked as intended.

"Before and after" footage is compelling because, by viewing the pictures, we are experiencing the change personally.  The EPA (and other Federal agencies, for that matter) needs to reframe the debate by spending more (a LOT more) of their budgets on advertising showing the American people the transformative impact that regulation has had on everyday life.  We await the big reveal in 2016.  

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There have been memorable social marketing campaigns over the years--Smokey the Bear, the sizzling egg that is your brain on drugs and the coining of “Obamacare” come to mind. Now Grist reports that Martin Glaser, the advertising genius that came up with the "I Heart New York" logo, has turned his communications brilliance to Climate Change.  

As I said in my earlier post on the importance of communications to public policy, Madison-avenue style marketing should not be reserved for toothpaste and cell phone plans.  Policy, like anything else, needs to be sold to the public in order to be accepted and effective.

The slogan is "It's not warming.  It's dying." You can see the campaign here.  I like the slogan, it captures the urgency.  But more than the slogan, I like the graphic of a green circle being overcome by a black shadow.  I think it is quite effective. 

If Madison Avenue can get Americans to believe that 4 out of 5 dentists agree that sugar free gum is good for you, then hopefully Martin Glaser can improve Yale's survey finding that "only one in three Americans thinks people in the U.S. are being harmed “right now” by global warming in the United States." 

I am giving away a "It's Not Warming, It's Dying" to the first 5 people that Tweet this post! 

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There have been memorable social marketing campaigns over the years--Smokey the Bear, the sizzling egg that is your brain on drugs and the coining of “Obamacare” come to mind. Now Grist reports that Martin Glaser, the advertising genius that came up with the "I Heart New York" logo, has turned his communications brilliance to Climate Change.  

As I said in my earlier post on the importance of communications to public policy, Madison-avenue style marketing should not be reserved for toothpaste and cell phone plans.  Policy, like anything else, needs to be sold to the public in order to be accepted and effective.

The slogan is "It's not warming.  It's dying." You can see the campaign here.  I like the slogan, it captures the urgency.  But more than the slogan, I like the graphic of a green circle being overcome by a black shadow.  I think it is quite effective. 

If Madison Avenue can get Americans to believe that 4 out of 5 dentists agree that sugar free gum is good for you, then hopefully Martin Glaser can improve Yale's survey finding that "only one in three Americans thinks people in the U.S. are being harmed “right now” by global warming in the United States." 

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You are a good green company.  You have dutifully installed a solar array on your facility, and use the energy it produces to power your manufacturing process. 

You proudly proclaim on your website, in your SEC filing or on your product packaging that you "use renewable energy."  You calculate your Carbon Footprint and deduct the emissions that would have been generated using conventional fuel.  

If, like most companies, you have sold the renewable energy credits (RECs) attributable to the renewable energy, you will potentially be in violation of Section 5 of the FTC Act (15 U.S.C. Sec. 45) (“Section 5”), which prohibits “deceptive acts or practices in or affecting commerce.” 

The Federal Trade Commission released the long-awaited fourth edition of the "Green Guides" on October 11, 2012. The purpose of the Guides is to provide a framework for companies to truthfully and non-deceptively market environmental and “green” products, packages, and services. A copy of the Guides is available here.

The Guides address green marketing in general and specific applications, including renewable energy (Section 260.15).  In one of the more controversial aspects of the Guides, the FTC advises that:

If a marketer generates renewable electricity but sells the renewable energy certificates for all of that electricity, it would be deceptive for the marketer to represent, directly or by implication, that it uses renewable energy.

Guides at § 260.15(d).

The FTC has concluded that renewable energy stripped of its carbon reduction and other environmental benefits is just energy. Thus, even if a company has a renewable energy installation on its facility, and uses the energy from that facility to power its manufacturing process, if it sells the renewable energy credits, it still would not be able to represent that it used renewable energy. In addition, any carbon offsets or emissions reductions could not be included in the company's calculation of its environmental impact.

This counter-intuitive result was roundly criticized in comments on the Guides:

Most commenters agreed that it would be deceptive for a marketer to represent that it uses renewable energy if it sold all the renewable attributes of the energy it uses. Most who addressed this issue, however, disagreed with the Commission’s proposed guidance. They argued that, even when a firm sells RECs, it should be able to market its role in generating renewable energy.

The FTC, in its response, defended its position regarding RECs, but said that a company hosting a renewable energy facility and selling the RECs would not be violating the FTC Act if it describes fully and accurately its role in the transaction.  Most companies, however, are not doing this. 

There is some evidence that the FTC is increasing its enforcement of false environmental claims. The FTC brought claims against four national retailers, including Amazon, Macy’s and Sears, that were allegedly selling textiles as made of bamboo when they were actually made of rayon. The companies settled with the FTC on or about January 3, 2013, paying a total of $1.26 million in penalties for the false advertising.

The FTC brought claims against Sherwin Williams and PPG for deceptively marketed their paints as free from volatile organic compounds (VOCs). According to the FTC, the base paints were VOC free, but tinted paint (which most customers buy) contained VOCs. The FTC settled the claims in October, 2012, and the companies were forced to change their marketing practices.

Given the frequency with which the Renewable Energy/REC rule is broken, it would be impossible for the FTC to police all of the violators.  However, In the context of other green marketing claims, the FTC may scrutinize a companies' representations about renewable energy and greenhouse gas reductions.  For companies that make public disclosures in Securities and Exchange Commission filings, this could be of even greater concern.

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