Certifications Matter

Third-party environmental certifications are under misguided civil litigation attacks that will be counterproductive to environmental and social progress.  In the last year, a variety of putative consumer class actions and other lawsuits have been filed against brands that rely on certifiers to provide third-party validation of environmental claims.  The contagion now seems to be spreading to the certifiers themselves.  This is highly unfortunate.

In its 2012 edition of the Green Guides, the FTC recognized that seals and certifications may be "endorsements," subject to the FTC's Endorsement Guides.  Those guides reflected the then-important concern that consumers might not be able to distinguish between self-certification and third-party certification, and that certifications might convey broader benefits than were actually assessed, requiring qualification.  

A decade of experience since has largely quelled these initial concerns.  Reliable, recognizable, third-party certifications regularly serve an important function in incentivizing achieving corporate environmental and social progress for a variety of reasons:

1.  Most companies lack the internal resources to self-assess environmental or social progress according to internationally accepted standards; 

2.  The use of independent, third-parties serves as an important benchmarking measure and quality check on the assessments;

3.  These third-party certifiers are, under the right conditions, much better suited to develop assessment criteria that are fair, open, transparent and state-of-the-art.  It is their "business" to develop and implement the best standards available.

4.  If the same certification symbols or marks are used across different companies, consumers will develop familiarity with them and better understanding of what they mean.  A valid certification can signal to consumers that a particular product has achieved some measure of progress and perhaps influence consumer choice.

5.  The market has "weeded out" bad certifications and will continue to do so.  A group of trusted certifiers have risen to the top and are now highly regarded throughout the world.

6. As with every successful environmental or social organization, a fringe of activists will argue that they do not go far or fast enough.  Good certifying organizations listen to those activists and incorporate their commentary into iterative standards development and improvement.  However, we should allow such activists to hijack this considered process. 

The FTC also can foster the development of a robust and reputable certification scheme if it sets forth the criteria for robust, reliable certifications.  Bad or weak certifications should be distinguished from good ones.  The FTC can look to internationally-accepted standard-setting regimes (essentially, rules for standard-setting), that outline best practices and even audit and accredit certifying organizations. 

Merely by suing certifiers, private plaintiffs counterproductively chill the market for certifications by injecting litigation and attorneys'-fee risks in the pursuit of, in the cases I have seen thus far, meritless allegations.  This is bad for environmental and social progress and could deprive consumers of useful information.

Over the next months, we will learn how courts react to the initial wave of legal complaints and whether the defendants can defeat these challenges, or whether the courts will indicate receptiveness to a new wave of these attacks.