Air Date: Week of April 7, 1995

California's standards for product labeling are higher than most states' in the nation. Some companies don't like the legislated definitions of what's recyclable, biodegradable, or ozone friendly. So far, the courts have upheld the green labelling threshold in the golden state, but there could be more challenges to come. Cy Musiker reports.

Transcript

CURWOOD: The electric vehicle rule isn't the only environmental standard set by California that's being challenged by industry; advertising is another. Back in 1990, the Golden State passed a green marketing law that places tight limits on the use of environmental claims. If you want to claim your product is biodegradable, recycled or ozone-friendly, you have to meet certain standards. But some advertisers say this is an unconstitutional limitation on free speech, and they've gone to court to get the law off the books. Cy Musiker has our story.

(Checkout counter; a man asked, "Thirty-one thirty-nine...")

MUSIKER: Shopping is always a test of consumer skills. We fight for the best value even as we're tempted by products that claim they'll make us sexy and rich. A few years ago commercial advertisers figured out that some consumers would also pay extra for products that are easier on the environment. Toilet paper, for example.

MURRAY: It doesn't talk about how soft it is. It doesn't say it's squeezable, it doesn't have Mr. Whipple on it. Instead, it talks about the fact that no virgin trees went into the manufacture of these rolls of toilet paper. Now their forest is the urban areas of America.

MUSIKER: We're talking about Green Forest brand toilet paper in a Sacramento supermarket with Mark Murray. He's Executive Director of the group Californians Against Waste, one of the original sponsors of California's green marketing law. Murray says he thinks mainstream companies have every right to trumpet their products' green qualities, as long as the claims aren't false.

MURRAY: The most egregious example was the Pampers, the disposable diapers, where they went on an advertising campaign trying to suggest that the disposable diapers were compostable. While in fact only a few pilot programs in the entire country even had these programs set up. So in fact, they were making a claim that really wasn't responsible for California.

MUSIKER: So California legislators passed a law strictly defining green marketing terms. The word "recycled," for example, means a product must be made from at least 10% post-consumer material, not just reused industrial scraps. "Biodegradable" means that the product will decompose within one year into a nontoxic substance. Al Shelden is the Assistant Attorney General representing the state in Federal court.

SHELDEN: Now a consumer can't tell, for instance, if they're using a spray, hair spray type of product, whether or not it really is going to harm the ozone layer or not. These are not the kinds of claims that consumers can verify through use of the product the way they can, you know, if the soup is good-tasting or if some other product does what they have bought it to do.

MUSIKER: Shelden says no companies have been charged under the green marketing law, but advertisers claim the restrictions violate their First Amendment speech rights.

JAFFEE: The issue is not whether people should advertise truthfully in the environmental area. Of course they should. What California has done is go way beyond any type of protection of truth to say that there's only one way to talk about the environment; that's the California way, and we reject that.

MUSIKER: Don Jaffee is Executive Vice President with the Association of National Advertisers. He says some companies had to abandon packaging, which accurately stated a product's green qualities, because it didn't meet California thresholds. But the Association and its manufacturing allies have lost the first 3 rounds in Federal Court. In February the 9th Circuit Court of Appeals upheld an earlier decision by a 3-judge panel which ruled that the state has every right to protect its citizens from fraudulent ads and to reduce the burden on its brimming landfills. The advertisers are almost certain to appeal to the US Supreme Court. Attorney Floyd Abrams, known as an expert on First Amendment issues, is their lead counsel. He finds hope in the dissent of one judge.

ABRAMS: Judge Noonan, the dissenting judge in our favor, said look, I know why they won't let you use the word "recycled." He said the word "recycled" is one of the sacred words in the lexicon of the green movement. And he said what you're really doing, California legislature, is taking certain words which have come to have very politically charged, very emotional impacts on the environmental movement, and making them off-limits for advertisers. And that, Judge Noonan said, is something that you really can't do.

MUSIKER: The stakes are very high. Advertisers say if they have to follow these guidelines in California, the nation's largest market, they'll have to follow them everywhere. So the California rules could become de facto national standards. Despite the legal battle, many manufacturers are having no trouble adapting to California laws. (Piped in music plays) We're back at the Sacramento supermarket now with Mark Murray from Californians Against Waste. He's holding a bottle of Tide detergent.

MURRAY: So Procter and Gamble, who has been one of the big proponents of the lawsuit here in terms of attacking California's environmental advertising law, has actually been using the environmental marketing law here in California, has been advertising - here we've got their Tide bottle plastic container - claiming, "Bottle made with 50% post-consumer recycled content." So this is a product that is living with California's law, it is probably marketing, I guarantee you, they're marketing this Tide bottle all across the United States probably all over the world, with the same label.

MUSIKER: While advertisers consider the next step in their fight against the California law, both sides are eagerly awaiting another Supreme Court decision. The Coors Company has argued that it should be able to advertise the alcoholic content of its beers. A ruling in favor of Coors could indicate the Court is more sympathetic to the free speech rights of advertisers than they are to government's right to determine what's good for the community. For Living on Earth, I'm Cy Musiker in San Francisco.