What Does This Logo Mean?
Take a look at the green drop on the bottle of Fiji Water pictured right. (If you are a rational actor, you won’t buy the bottle for $7, but that’s another story). What do you think it means? What if it was accompanied by the website URL “fijigreen.com”?
Well, if you are the California Court of Appeal, it means essentially nothing. Four days ago, in Hill v. Roll Int’l Corp., the Court of Appeal affirmed a trial court decision holding that as a matter of law, the drop logo and the website did not constitute deceptive “greenwashing.” “No reasonable consumer,” said the Court, “would be misled to think that the green drop on Fiji water represents a third party organization’s endorsement or that Fiji water is environmentally superior to that of the competition.” (emphasis in original).
This seems a little strange to me, because as a general matter this sort of judgment would be a quintessential jury question. The Court in this case acknowledged this, noting that generally it is a jury question, and citing the other appellate decisions holding as much. But “generally” is not “invariably,” it said, and this was one of those cases that didn’t fit into the general pattern. Besides, in the Second Appellate Division, it contended, misleading advertising claims are pure questions of law.
This one could probably stand to go higher, and not only because of the split between jurisdictions. Fiji Water has a very controversial record: environmental activists have repeatedly accused it of misleading the public about its record on the environment and social responsibility. But Fiji is not alone, and is part of a bigger trend. 
Given the growing market for “green” products, the California Supreme Court needs to make it as clear as possible how such cases should proceed — and importantly, how such claims interact with First Amendment protections for commercial speech.
The court here was clearly hostile to the plaintiff, accusing her brief of “hyperbole.” (Well I never!). It also believed that the complaint was not well-pled, and there is lots of other evidence about Fiji’s strong suggestions that it is an environmentally superior alternative. “Not all waters are created equal,” is another slogan. And one of my personal favorites: “It’s not from Cleveland.” Cleveland officials angrily retorted that their water didn’t have any arsenic in it, unlike, say Fiji Water’s.
The controversy with Cleveland also shows why tougher policing of bottled water claims might be necessary. As Elizabeth Royte has demonstrated in her terrific book, Bottlemania: How Water Went On
Sale and Why We Bought It, bottled water can often have devastating environmental consequences with no added health benefits. Robert Glennon of the University of Arizona Law School has provided important evidence of the tendency of bottled water production to deplete aquifers. But the growing market for bottled water can also mean less political support for municipal water systems, which often do a better job than the private sector, both in terms of health and environmental stewardship. At the very least, if the bottlers are going to undercut public agencies, they might as well have to tell the truth.
UPDATE: Looking over the opinion more closely, it is hardly a model of tight reasoning. A green drop of water is no more than what would be expected for a seller of water, it said. Is normal drinking water usually green? The plaintiff referenced another one of Fiji’s slogans: “Every drop is green.” Does that make environmental claims? Not at all: this slogan would not alter the overall impression of a reasonable consumer — which of course is a pure matter of law. The California Supreme Court needs to look at this decision carefully.
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Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic – Land Use, the Environment and Loc…
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Was the issue that the drop wasn’t a claim, or that it was a claim but wasn’t misleading to a reasonable consumer? Either way, it seems like a question for the jury.
Cal Bus. and Professions Code 17580.5(a) defines “claim” to include anything that shows up in FTC’s Green Guides, and one example from the (not-yet-finalized) revisions to the Guides seems relatively close to this:
“[A]n environmental seal … in the form of a globe icon … likely conveys that the product has far-reaching environmental benefits.”
As to whether such a claim would mislead a reasonable consumer, the initial results of FTC’s consumer perception survey seem relevant to what a reasonable consumer might think in this case:
“61 percent of respondents viewing an unqualified ‘green’ claim believed the product is made from recycled materials; 59 percent believed the product is recyclable; 54 percent believed the product is made with renewable materials; 53 percent believed the product is biodegradable; 48 percent believed the product is made with renewable energy; 45 percent believed the product is non-toxic; and 40 percent believed the product is compostable.”
Why couldn’t a juror determine that Fiji wouldn’t put the drop on the label if it didn’t mean anything by it, and wouldn’t be able to charge $7 a bottle if some consumers didn’t think the product had an environmental benefit?
One other question: If this is a claim under 17580.5(a), does that trigger the requirement in 17580(a) and (b) that Roll International maintain written records about “any significant adverse environmental impacts directly associated with the production, distribution, use, and disposal” of Fiji Water and share them with any member of the public upon request?
Here is a link to the opinion that does not need a subscription. I’ll update:
http://www.courtinfo.ca.gov/opinions/documents/A128698.PDF
The Court held that it was a claim, but that no reasonable consumer could find it misleading — AND that this judgment is a pure question of law. I can’t see how that wouldn’t be a jury question. The Court distinguishes the “globe icon” argument by paraphrasing Ring Lardner: “Shut up, he explained.” Here is the Court’s “reasoning”:
“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. The context of the symbol is vitally important (16 C.F.R. § 260.7(a) (2011)), but we start with the drop itself. It 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 example in the FTC guides does include, as likely to mislead, a “globe icon” with or without the words Earth Smart around it (id., example 5); but a symbol of the Earth is more suggestive of a seal of an environmental organization and, as Hill’s page of other images shows, could suggest the established Green Seal logo, with a stylized check mark and the words “Green Seal” contoured around a globe. Fiji water has just a green drop, the drop being the most logical icon for its particular product — water. We assume, for demurrer purposes, that reasonable consumers would view the drop, together with its green color, as referring to the environment, but the FTC guides do not prohibit, in the complaint’s words, “touting” a product’s “green” features. By providing guidelines and a ” ‘safe harbor’ ” for advertisers wanting to make environmental marketing claims (id., § 260.3 (2011)), the guides promote making them, provided only that they do not mislead reasonable consumers.”
Impressive mental gymnastics to get from this:
“Defendants obviously put the green drop on the label for a purpose, as their counsel had to necessarily concede at oral argument: that the green drop was for a “marketing” purpose, to signify “something to do with the environment.”
to this::
“Such concession notwithstanding, we hold … that no reasonable consumer would … think that the green drop represents … that Fiji water is environmentally superior to that of the competition.”
Also, shouldn’t somebody be writing to Roll requesting documentation of “any significant adverse environmental impacts directly associated with the production, distribution, use, and disposal” of Fiji Water?