Food Labels as a Method to Combat Climate Change
by Seth Gitner, Online Staff Editor
Consumers are increasingly concerned with their carbon footprint. Food is one area where consumers can make choices based on which products have the least negative impact on the environment. “Food choices shape our waistlines, the natural landscape, and ecological health.” To many, this is not news. “Society has become increasingly aware that choices about food contribute to the climate crisis, cause species loss, impair water and air quality, and accelerate land use degradation.” “Consumers have indicated a willingness to pay a premium for goods and services that are less harmful to the environment, and the market is happy to oblige.”
Consumers’ growing desire to make environmentally conscious choices has led to a proliferation of labels on food packaging that are not always clear. As of 2009 there were 80 labels being placed on products in the US to denote environmental consciousness, 19 of which were devoted to food alone. “Food eco-labels include government sponsored labels (e.g., USDA Organic); first-party or self-declared claims (including claims such as “sustainable,” “all natural,” or “responsibly sourced”); and labels and seals of approval derived from independent third-party certifications (e.g., the Marine Stewardship Council seafood standard).” This has created an environment of consumer confusion. With so many labels being placed on foods it is sometimes difficult for the consumer to be sure what exactly they are supporting and whether they can trust it.
Government Sponsored Labels. One of the most prevalent labels that has environmental impacts is the government sponsored USDA Organic Label. “Under the Organic Foods Production Act of 1990 (OFPA) and the National Organic Program (NOP), the U.S. government creates production, handling, and labeling standards for organic agricultural products… Organic food labeling in the United States has become the dominant environmental label, earning great cachet with consumers.” It remains unclear, however, whether consumers are entirely certain what the term “organic,” as it is used by the certification, actually means. For example, a food product that is labeled organic may contain non-organic ingredients so long as they do not compose more than 5% of the total product. For consumers who want 100% organic products, they must seek out the “100% Organic” label. Though the difference between 95% organic and 100% is arguably not a big deal, it shows that consumers have to pay close attention when it comes to labels – even when they are sponsored by the government. In fact, a 2013 report by the Natural Foods Merchandiser found “Organic” to be one of the most confusing labels for consumers.
First-party, or self-declared, labels are claims made by manufacturers, importers, distributors, retailers, etc., that do not have any independent third-party certification. How businesses use their eco-focused adjectives, such as “sustainable,” varies from one producer to another. This has resulted in “widespread consumer confusion and skepticism over the veracity of environmental claims.” Additionally, it undermines the well-intentioned producers who are offering more environmentally conscious products and wish to charge a premium for them in the marketplace to offset their increased costs. In other words, a lack of clarity created by first-party claims disrupts the successful marketing of eco-labels and therefore frustrates the well-meaning intentions of consumers that wish to purchase items that will reduce their carbon footprint.
The Federal Trade Commission “has been the primary agency in regulating environmental marketing through its mandate to protect consumers,” but the agency “focuses on the consumers’ perception of environmental claims, not on the environmental claims themselves.” The FTC’s green guides have been one step in combating consumer confusion by setting standards for what environmental claims can and cannot be made on consumer products. Although the green guides establish that it is inherently misleading to claim a product is “good for the environment” without specifying how, they do not provide guidance that would be useful to consumers looking to purchase food that would reduce their carbon footprints. The guides do not include specific guidance for the terms “organic,” “natural,” or “sustainable.”
Third Party Labels and Certification Labeling. Certification marks are a specific kind of trademark that signals to the consumers that the goods with the certification meet a certain standard. They play an important role in “greening the market” because they allow consumers to find greener, more sustainable, goods that are more trustworthy than self-certified products. The laws that govern certification marks play an integral part in attracting consumers to the products that provide the actual environmental benefit they are seeking.
Certification mark owners must file a description of what is needed to qualify for their certification with the United Stated Patent and Trademark Office. Once a certification mark is registered, it is subject to section 14 of the Lanham Act, which, among other things, requires that the mark holders maintain control over their marks and that they award the certification to any party that meets their filed standards. This ensures that the certification scheme provides incentives to police the use of one’s mark while remaining impartial.
“Consumers choosing goods on the basis of such certification marks must be able to rely on the veracity of the labels to ensure that they are receiving the bargained-for benefit.” This however, is not always the case. Fair Trade, a label aimed at reducing poverty and helping the environment, is receiving increased scrutiny by large-scale coffee purchasers that believe the certification has fallen short of its mission. Whether or not consumers are aware the Fair Trade certification has fallen short is another story.
One example of a third-party certification program specifically geared towards informing consumers of the carbon footprints of the products they buy is the Carbon Trust. In 2001, the British Government created the Carbon Trust in order to work with private organizations to combat carbon emissions. The Carbon Trust helps companies measure and then communicate the greenhouse gas emissions produced by their products. “The company’s most recognizable achievement is the creation of the ‘Carbon Reduction Label’–a black footprint with ‘CO2’ written on it along with the number of grams or kilograms of total greenhouse gas emissions emitted at every stage of the product’s life-cycle, including production, transportation, preparation, use and disposal.”
Who is ensuring that these standards are being properly administered? That answer is not always clear, but more clarity is needed especially as consumers increasingly want to use their purchasing power to reduce greenhouse gas emissions. The U.S. Patent and Trademark Office (“USPTO”) administers [certification marks], but the FTC is primarily responsible for consumer protection, and the nebulous field of ecolabels further implicates the EPA, USDA, and FDA. Though tasked with leading the regulatory effort, the FTC is woefully limited in technical expertise regarding environmental issues, and consultation with the EPA has proven insufficient to overcome this weakness when crafting regulations on environmental marketing. A higher level of inter-agency cooperation is necessary.” One option for certification marks is to raise the requirements for registration. “By raising the bar, the USPTO’s gatekeeping function can better filter out some of the obviously deficient programs.” One option for first-party labels it to extend standing to allow citizen-suits and consumer watchdogs to act upon the consumer’s concerns. Until changes are made to bring more accountability to the system, eco-minded consumers will operate in a marketplace where they will not be entirely sure of the impact of the items they purchase.
 Consumers Care About Carbon Footprint, Science Daily, https://www.sciencedaily.com/releases/2016/02/160226133615.htm (last visited Mar. 1, 2017).
 Jason J. Czarnezki, The Future of Food Eco-Labeling: Organic, Carbon Footprint, and Environmental Life-Cycle Analysis, 30 Stan. Envtl. L.J. 3, 4 (2011).
 Wynn Heh, Who Certifies the Certifiers?, 16 Vt. J. Envtl. L. 688, 689 (2015).
 Eco-Friendly Labeling, The Washington Post, http://www.washingtonpost.com/wp-dyn/content/graphic/2010/05/03/GR2010050301056.html?%20sid=ST201005030105 (last visited Mar. 1, 2017).
 Jason Czarnezki et al., Creating Order Amidst Food Eco-Label Chaos, 25 Duke Envtl. L. & Pol’y F. 28, 283 (2015).
 Id. at 285.
 Id. at 291.
 Beth Hoffman, ‘Organic’ One of the Most Confusing Labels, Report Says, Forbes (July 17, 2013, 11:33 AM), https://www.forbes.com/sites/bethhoffman/2013/07/17/organic-causes-confusion/#de16ff831594.
 Czarnezki, supra note 6, at 284.
 Heh, supra note 4, at 703.
 16 CFR §260.1.
 16 CFR §260.7.
 Congressional Research Service, The Federal Trade Commission’s Regulation of Environmental Marketing Claims and Related Legal Issues, R43827, 10 (2014).
 Heh, supra note 4, at 690.
 Id. at 691.
 Id. at 696.
 Id. at 701.
 Colleen Haight, The Problem with Fair Trade Coffee, Stanford Social Innovation Review, (Summer 2011), https://ssir.org/articles/entry/the_problem_with_fair_trade_coffee.
 Jessica E. Fliegelman, The Next Generation of Greenwash: Diminishing Consumer Confusion Through a National Ec0-Labeling Program, 37 Fordham Urb. L.J. 1001, 1028 (2010).
 Czarnezki, supra note 2, at 20.
 Heh, supra note 4, at 712.
 Id. at 713.
 Id. at 715.