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in the last few years there's been a
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kind of shift in the way that
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greenwashing has entered the public
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Consciousness for many years it was
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really all about product-based claims
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but what the shift has been is over the
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past few years firms have increasingly
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been making claims about their
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environmental impact as a whole or their
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climate impact welcome to the ripple
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effect the podcast that takes you on a
00:00:26
journey through the minds of Wharton
00:00:27
faculty I'm your host Dan Loney and in
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each episode we'll be diving deep into
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apply to your life and to work so get
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ready to dive into new ideas with the
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ripple effect
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all right so this topic of green
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watching we've heard it talked about a
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lot in the public it's obviously come up
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with a lot in the media for those that
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maybe don't have a total grasp on it
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give us a definition of what green
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watching is absolutely so green washing
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is kind of this umbrella expression that
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refers to situations in which an entity
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is publicly making statements about its
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environmental impact or the
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environmental impact of its products or
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services that are not actually borne out
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by the evidence so it could be a
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directly false claim like this product
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made by this company is 50 recycled
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material when in fact there's no
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recycled material in it at all it could
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be
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um a kind of more vague you know our
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product is all natural we don't really
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know what that means
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um and it could be sort of there are
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many many different other forms but
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what's really important to understand
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about greenwashing is that it can refer
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not only to a product like a specific
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advertisement or a product or a service
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it can also refer to sort of efforts to
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paint the entire firm as being more
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environmentally conscious than it is and
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I think that's the way in which it's
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been coming up a lot more recently so
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what was it that piqued your interest
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about green washing and also kind of
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also about the First Amendment as well
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absolutely so as you know from our many
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conversations over the years
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um I'm a professor at Wharton in the
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legal studies and business ethics
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department and
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um and so my interest in kind of uh the
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intersection of business and environment
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relates primarily to the legal rules and
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sort of the legal and policy environment
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that addresses the ways in which
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business firms interact with the
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environment and green washing is this
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really interesting case because you know
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not only has it been coming up kind of
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more and more as firms are becoming more
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and more aware of the fact that their
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stakeholders want them to be more
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environmentally friendly or aware
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um but the question of are these claims
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real are they backed by evidence or are
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they greenwashing has raised questions
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about how we need to think about
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enforcement and how can we prevent firms
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from misleading members of the public be
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they consumers or investors or
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Regulators about the kind of Bona fidas
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of their environmental marketing claims
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so um so that's kind of The Big Picture
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answer about how I'm you know why I'm
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interested in this topic the most
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specific answer actually is
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um is that in the last few years there's
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been a kind of shift in the way that
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greenwashing has entered the public
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Consciousness for many years it was
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really all about product based claims
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you know this product contains recycled
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material when it doesn't or this product
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is you know
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um non-toxic but it's toxic
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but what the shift has been is over the
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past few years firms have increasingly
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been making claims about their
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environmental impact as whole or their
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climate impact so for example more than
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a thousand firms in the past few years
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have made public statements or
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commitments that they're going to get to
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Net Zero greenhouse gas emissions by
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2050.
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some of those claims may be uh real and
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bet you know backed by evidence and
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others may be just kind of puffery and
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kind of trying to go along with the flow
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and so what I'm really interested in and
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what piqued my interest was situations
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in which the firm itself is kind of
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trying to characterize itself or its
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business as making a transition to Net
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Zero uh by 2050 World
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um when in fact many of the firms are
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kind of continuing business as usual or
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you know uh sort of how to tell the
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difference so that's really what piqued
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my interest in this project a few years
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ago how prevalent do you think green
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washing is out there in the in the
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business Community these days right so
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the truth is I think it's really hard to
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tell I think that
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um in a way the prevalence depends very
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much on what your definition is and it's
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this is the really hard part right
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because when you think about certain
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legal terms like assault or murder or
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something like that or you know fraud
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those terms have legal definitions a
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court can say is this fraud well is it a
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material misrepresentation of fact that
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harmed you know that that caused harm
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right there are elements green washing
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is not a legal term of art green washing
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is like the word that we all use when we
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feel deceived and so you might have a
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much broader definition of greenwashing
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than I do or I may have a broader
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definition than you do right and so when
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I teach the topic of greenwashing to my
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students this is actually really
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interesting I give them a set of
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examples that are based on reality
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um you know real life uh cases and I ask
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them is it greenwashing or is it not
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brainwashing and of the six examples
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that I give you know two of them at the
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very extreme ends one is clearly
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everybody's hand goes up yes this is
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definitely green washing and On The
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Other Extreme not a single hand goes up
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definitely not green washing but in the
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middle you get kind of 50 50 and it's
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really hard to know and part of the
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reason why is because there can be
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directly false claims where you know
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either it's factually true or factually
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not true and you can test it like the
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content of a product
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um but then they're the kind of
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misleading ones like a major fossil fuel
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company having an ad that
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um uh highlights its investments in
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renewable energy and those Investments
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are real
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but those Investments comprise less than
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one percent of the entire business right
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and so it's trying to create an
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impression or a kind of halo effect that
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may be misleading
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um as customers or investors are
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thinking well should I buy this stock or
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that stock should I go fill up my tank
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at this gas station versus that gas
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station right and so it affects consumer
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choices in the marketplace as well as
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investor decisions so it's really the
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truth is it's really really hard to tell
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there have been a few studies
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um particularly looking at for example
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The Net Zero claims by Major firms in
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like the SNP S P 500 and one recent
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study
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um uh suggested that the while you know
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the firms in the sample had uh stated
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publicly that they were going to get to
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net zero emissions uh by 2050. in fact
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they were only going to get about 40
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percent of the way there
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so that's one study but that's kind of
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the the range that we're dealing with so
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on the other side of this as I alluded
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to there's a component of First
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Amendment here yeah uh and I guess the
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question is with the rights that we have
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under the First Amendment does the issue
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of green washing violate those
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great so super interesting question and
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um and you know the reason why I think
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the First Amendment comes into play here
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is because the since 1976 the Supreme
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Court has protected not only political
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speech right like I'm gonna vote for so
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and so but also certain forms of
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commercial speech as long as that
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commercial speech is truthful and
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accurate and not deceptive or misleading
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and before 1976 there was essentially no
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protection like you couldn't say I have
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a First Amendment right to advertise for
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my business
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right
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um you know a state could say no your
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your lawyers cannot advertise right and
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that wouldn't pose a First Amendment
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problem but beginning in 1976 the the
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court basically said even commercial
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speech is protected what's interesting
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about it is that the reason why the
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Supreme Court decided to protect
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commercial speech like advertising or
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marketing claims
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um is not based on the kind of autonomy
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interest of the speaker it's not about
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you know the Chevron corporation's
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autonomy to say what it wants in the
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marketplace it's about you and me as
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listeners
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and our interest in the marketplace in
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ensuring that there is accurate factual
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information so that we can make choices
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in the marketplace and we can make
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choices about how we want to regulate
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the marketplace that's basically what
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the Supreme Court said
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so yeah go ahead so so when you think
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about that that issue of misinformation
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yes and you think about the the
00:09:49
potential impact that it might have on
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the marketplace there are a variety of
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different elements where it could have
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impact from bottom line benefit to the
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company to the impact on its uh
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shareholders to the public you know
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there are so many areas that could
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potentially be impacted here absolutely
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absolutely so we know from Empirical
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research some of which has been done by
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my Wharton colleagues that
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um as well as people from other schools
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of course
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um that uh
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marketing information about firms sort
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of corporate social responsibility or
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their environmental programs
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um can have an impact in kind of two
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primary ways the first is on the
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consumer
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so there's one study that demonstrates a
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kind of halo effect
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um for products uh produced by a firm
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that engages actively in corporate
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social responsibilities so participants
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in this study
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um were provided information about you
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know firm a donates money to X cause and
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then we're asked to rate
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um a hair regrowth product
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um a tooth whitener and a uh an optical
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character recognition text scanning
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program to to basically rate the
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programs rate these products as to how
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good they were you know how wide are the
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how much hair grew back how how clear is
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the scan
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um and another group of participants
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were asked to rate the same product but
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were given no information about
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donations by The Firm
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and the participants who learned that
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the firm had engaged in corporate social
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responsibility rated the teeth as wider
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the text is clearer and the hair is
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fluffier
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um and this is sort of a really clear
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demonstration of a halo effect right so
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when you you know when there are other
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studies that say that or that
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demonstrate that when consumers learn
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that a firm makes product X using
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renewable energy or in some other kind
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of you know environmentally conscious
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way they attribute that environmental
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Consciousness to the firm's other
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products they'll say oh well if that
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product is made with renewable energy
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then you know all the products may be
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made with renewable energy there's an
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assumption to that effect so there's
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kind of this Halo of greenness that
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comes about and if I'm making a choice
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in the marketplace about whether to
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purchase you know from firm a or firm B
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and I find out that firm a is using
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renewable energy I might buy from firm a
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and so if that's true that I'm making a
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good choice if that's green washing and
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in fact the firm isn't using renewable
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energy or they're only using it in some
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really limited way but they're hyping it
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up and they're advertising
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um then I'm being misled and maybe I
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would have chosen the other product
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right so it distorts voices in The
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Marketplace the second Major Impact
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relates to
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um our role not as consumers but as
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voters
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and there are a number of different
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studies that show that when when
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um in sort of in both directions that
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there are policies delivers so on the
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one hand there is the negative policy
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spillover meaning
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study has shown that when
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um participants learn that all firms in
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an industry are setting targets that
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they're going to use you know recycled
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materials in their products they're less
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likely to support public regulation on
00:13:27
the same subject matter largely because
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of this impression that like the firms
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have got it right this is under control
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this isn't an area that we need to
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address with regulation on the flip side
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there are also studies that show that
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certain segments of the population may
00:13:44
be more likely to support public
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regulation when they learn that a firm
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has taken action rather than like the
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state of California so my favorite study
00:13:53
in this regard his one uh done by uh
00:13:56
some uh faculty at Northwestern who
00:14:00
basically showed participants in the
00:14:02
study information about either
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California using cage-free eggs or
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McDonald's using cage-free eggs in their
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supply chains and then they
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disaggregated the participants by
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political affiliation and what they
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found was that if you're on the liberal
00:14:18
side of the spectrum didn't really
00:14:20
matter that much if you learned that
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California or McDonald's was using
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cage-free eggs you were generally
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supportive of laws against battery hen
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egg production battery cage and egg
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production sorry I'm not saying that
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right but you know what I mean
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um whereas people who identified as very
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conservative when they learned that the
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state of California was purchasing only
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cage-free eggs they weren't super
00:14:46
supportive of public policy they're like
00:14:48
you know those Tree Huggers uh they're
00:14:50
gonna do what they want crazy State of
00:14:52
California but when conservatives
00:14:54
learned that McDonald's was purchasing
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cage-free eggs
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they were as supportive of public policy
00:15:02
on cage-free eggs as liberals
00:15:05
why maybe if a major corporation thinks
00:15:09
that this is an issue as well as if a
00:15:12
major corporation thinks that it can do
00:15:14
this you know consistent with its profit
00:15:16
maximizing goals then this is really a
00:15:20
problem so I as a conservative and more
00:15:22
likely to trust it if McDonald's thinks
00:15:24
it's a problem than if the state of
00:15:25
California
00:15:27
right and so we so there's an impact
00:15:29
also on like the interest in members of
00:15:33
the public to regulate the problem
00:15:35
so there's a component then of of trust
00:15:39
that is kind of involved in that
00:15:41
messaging as well especially when you're
00:15:43
talking about an element of the
00:15:45
government versus a a corporate entity
00:15:47
as well yeah absolutely and I think that
00:15:50
that's pretty well estab lished there's
00:15:52
this concept
00:15:53
credibility right so depending upon you
00:15:57
know how I self-identify whether it's as
00:15:59
a matter of partisan politics or as a
00:16:01
matter of other you know identity-based
00:16:03
characteristics that I may find certain
00:16:06
uh sources more credible so I might find
00:16:09
the state of California more credible
00:16:12
than the US military someone might find
00:16:14
the US military more credible than
00:16:16
McDonald's right you can you can kind of
00:16:18
see where it goes based upon sort of
00:16:20
different
00:16:21
values that we hold or D or you know uh
00:16:25
different factors that that play into
00:16:27
our identity but I want to mention uh
00:16:29
just to sort of pick up your question
00:16:31
from earlier about the first amendment
00:16:33
that the way in which the First
00:16:35
Amendment really begins to come into
00:16:38
play is because the first amendment is a
00:16:41
limit on what the government can do
00:16:43
right the first amendment basically says
00:16:46
I have a right not to be bothered by the
00:16:49
government not to be told what to do by
00:16:50
the government in certain types of
00:16:52
Regulation and so if we're thinking
00:16:54
about what we want to do to prevent or
00:16:58
deter or punish green washing
00:17:03
the First Amendment kind of sets the
00:17:05
outer boundaries of what legal
00:17:07
institutions like the Federal Trade
00:17:09
Commission or the states or the
00:17:12
Securities and Exchange Commission can
00:17:13
do to either required disclosure of
00:17:16
environmental information or after the
00:17:19
fact to allow the government to sue a
00:17:23
firm for a false or misleading statement
00:17:25
and so that's kind of the way that the
00:17:27
First Amendment comes into play is sort
00:17:29
of what are the outer boundaries of what
00:17:31
the regulatory State can do to address
00:17:33
this problem
00:17:35
so in this era that we're in right now
00:17:39
where uh social is playing such an even
00:17:42
greater role uh in our communities and
00:17:45
with the impact around around businesses
00:17:48
how much impact you think a
00:17:52
an expectation from the public or uh
00:17:56
uh that that that social expectation how
00:18:00
much do you think that that can actually
00:18:01
play a role in changing the mind or
00:18:04
changing the path of a company uh around
00:18:07
some of these issues
00:18:09
so I actually think it's playing a
00:18:11
really important role I mean I think
00:18:13
it's playing an important role in in
00:18:14
sort of multiple different ways at one
00:18:16
level there's like the organized social
00:18:19
movement
00:18:21
that's you know boycotting company X for
00:18:25
not doing more on
00:18:27
choose your issue whether it's
00:18:29
environmental or social or the organized
00:18:32
environmental movement you know or the
00:18:34
organized movement on the other side
00:18:36
boycotting the company that's doing too
00:18:38
much right I mean so there's there's
00:18:41
sort of that level
00:18:42
I think that at a kind of More
00:18:44
disaggregated Level there are empirical
00:18:47
studies that show that consumers have
00:18:49
expressed a greater willingness to pay
00:18:51
for products that are more
00:18:53
environmentally friendly
00:18:56
um and the fact that you know I have
00:18:59
colleagues at Wharton who's who have
00:19:03
said and I think that they're right that
00:19:05
as soon as we begin to live in a world
00:19:08
in which
00:19:09
the marketplace values environmentally
00:19:12
friendliness we're likely to see not
00:19:14
only genuine environmental friendliness
00:19:17
but also greenwashing right because
00:19:19
firms want to you know some of them it
00:19:22
may be completely benign right they want
00:19:25
to do something they're like seeing all
00:19:27
of their industry you know competitors
00:19:30
announcing these pledges and they're
00:19:32
like oh we've got to do something and
00:19:33
they don't necessarily know quite what
00:19:35
to do and so they make the pledge and
00:19:37
they're not quite ready to support it
00:19:38
with the facts but you know if if they
00:19:42
can kind of get on the bandwagon then
00:19:43
you know nobody's going to be upset and
00:19:46
then there's the like really you know
00:19:48
intentional efforts to mislead
00:19:52
um to hide you know and I think
00:19:55
okay
00:19:56
so then what do you think needs to occur
00:19:58
then
00:19:59
to be able to get kind of a more
00:20:02
accurate picture of what companies are
00:20:04
doing especially if they are not telling
00:20:07
the truth absolutely so
00:20:10
um so as a lawyer it's very important to
00:20:12
me to work in at least one or two Latin
00:20:14
phrases during our conversation and so
00:20:16
here they are we have the right we have
00:20:19
the X ante and we have the X post so X
00:20:22
Auntie means before the fact X post
00:20:24
means after the fact so often when we
00:20:27
think about something like greenwashing
00:20:29
we think about Expo who can sue the
00:20:31
company when they've published the ad
00:20:33
and the ad is misleading
00:20:36
um that would be the FTC the Federal
00:20:38
Trade Commission which has power under
00:20:40
the Federal Trade Commission act to
00:20:44
um go after companies that are engaged
00:20:49
in deceptive uh marketing practices that
00:20:52
affect Commerce and so the FTC has
00:20:55
published something called the green
00:20:56
guides which are its interpretation of
00:20:59
how that statute applies to
00:21:00
environmental marketing claim and the
00:21:03
FDC just a couple of months ago
00:21:05
requested and that sort of comment on
00:21:08
how it needs to update the guides it
00:21:09
hasn't updated them since 2012 it's due
00:21:12
for an update I will be submitting you
00:21:14
know some suggestions right um but at
00:21:17
the end of the day that's the x-post
00:21:18
that's there was an ad somebody thinks
00:21:21
that it's misleading the FTC Sues and
00:21:25
seeks you know cease and desist orders
00:21:27
you know take down that ad and pay a
00:21:29
penalty
00:21:31
the ex-ante approach is the one that
00:21:35
frankly I think is probably more
00:21:36
important and more effective and that's
00:21:38
the one that's embodied in the
00:21:40
Securities and Exchange Commission
00:21:43
um mandatory disclosure uh ideas right
00:21:47
so last year the SEC
00:21:52
um published a proposed rule on climate
00:21:56
disclosures that would apply only to
00:21:57
publicly traded companies but basically
00:21:59
said that in their annual you know
00:22:01
periodic report that in addition to all
00:22:04
the other information that they need to
00:22:06
disclose on an annual basis they also
00:22:08
need to disclose their greenhouse gas
00:22:10
emissions they need to disclose if they
00:22:13
are have made a public commitment to
00:22:15
reduce emissions how they tend to
00:22:18
achieve that goal do they plan to use
00:22:21
carbon credits and offsets
00:22:23
Etc
00:22:24
um we are now waiting for the SEC uh
00:22:27
issued a proposed rule has accepted
00:22:29
comments on the rule got many many many
00:22:31
many comments and is now working its way
00:22:34
through them and we're anticipating that
00:22:36
sometime this spring
00:22:38
um the SEC is going to publish a final
00:22:40
rule which will immediately be litigated
00:22:43
in the courts and so not going to come
00:22:46
into effect immediately but the idea of
00:22:48
disclosure and and I'm a big fan of
00:22:50
disclosure is
00:22:52
you know if we're putting more accurate
00:22:56
factual information out into the
00:22:58
marketplace not only does that deter
00:23:01
companies from putting false or
00:23:03
misleading information into the
00:23:04
marketplace but it also gives us a
00:23:06
better handle on sort of what companies
00:23:09
are actually doing in a way that we can
00:23:11
maybe do a better job of judging when
00:23:13
claims are false or misleading
00:23:16
right yeah do you think then do you
00:23:19
think we're on on the right path in
00:23:21
terms of really making some significant
00:23:24
change uh in this area and having less
00:23:27
green washing out there in you know kind
00:23:29
of in the business public business
00:23:31
community and with the public as well
00:23:33
right so I think that the I think that
00:23:36
if the SEC does go forward with this
00:23:39
disclosure rule my understanding and you
00:23:41
know the sort of the word on the street
00:23:43
is that the final rule will probably be
00:23:46
narrower than the proposed rule based on
00:23:48
the comments but you know we'll have to
00:23:50
see I think that it will be a step in
00:23:51
the right direction
00:23:54
um I you know I think that it's really
00:23:57
really hard for Regulators to catch up
00:24:00
with marketing right Regulators have to
00:24:02
go through these really really long and
00:24:04
tortured processes to publish a you know
00:24:07
proposed Rule and then accept comment
00:24:09
and then a final Rule and all in the
00:24:12
meantime more and more claims are being
00:24:15
made about you know the the greenness of
00:24:17
our
00:24:18
you know of our our Industries and um
00:24:22
and so whether it'll stamp out the
00:24:24
problem I don't know but I think that it
00:24:26
it's a definite step in the right
00:24:27
direction and probably a better one than
00:24:30
just you know
00:24:32
expecting that either the Federal Trade
00:24:35
Mission or the states which have similar
00:24:36
Powers
00:24:38
um are going to go after every
00:24:39
advertisement right that's a very that's
00:24:42
a very um laborious process
00:24:46
thank you for listening to the ripple
00:24:48
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00:24:50
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Insight from the warden School
