But seeking to overturn the law, as the Association of National Advertisers and their fellow petitioners are attempting, is the wrong course of action. Instead, the industry should take the path suggested by an Advertising Age editorial and call for the enactment of binding federal regulations.
In fact, a recent consumer survey I conducted indicates that if advertisers don't abandon their court challenge, they could face a consumer backlash.
The survey consisted of 240 telephone interviews with adults in New York, San Francisco and Denver. They were asked a series of agree/disagree questions to measure their attitudes toward environmental advertising claims and government regulation of them.
Of those surveyed, 77% agreed that the government should police environmental claims. The good news is that consumers don't seem to care who does the regulating. In fact, many would prefer the federal government to handle it.
Perhaps because their states already monitor claims, 54% of Californians and 51% of New Yorkers felt regulation should be left to the states. But in Colorado, where no such regulations exist, 56% felt such matters should be left to the federal government. A significant number said state funds were too limited to provide adequate enforcement.
As in previous surveys, nearly 70% agreed that environmental claims help them make purchase decisions. But this survey gave new evidence of a deepening cynicism towards advertising.
Nearly 70% of respondents worried that advertisers would merely take advantage of their interest in the environment, and were concerned that products might not live up to their environmental claims. Not surprisingly, then, 75% said they would find such claims more believable if they knew they were regulated by government. They felt the threat of fines and sanctions would encourage accuracy.
Interviewees also viewed efforts to overturn state regulations with suspicion. In fact, 85% agreed that "if a product's environmental claims are true, there is no reason for advertisers to oppose government regulation of them."
More importantly, 71% agreed or strongly agreed (14%) that if they discovered environmental claims were inaccurate, they would react more negatively than if another sort of benefit was called into question. And 52% said they would then be less likely to buy other products from the same marketer. A comment from one Coloradan was typical: "Who wouldn't be upset? You think you're doing something really good and then you find out you aren't."
Consumer pressure has already helped push at least 18 states into passing or considering laws that would regulate environmental claims. So the question no longer is whether there will be regulation, but rather who will do it.
Obviously, federal regulation would keep national advertisers from becoming entangled in a net of conflicting state statutes. And it would also give all consumers-not just those in selected states-the kind of protection from vague or inaccurate promises they clearly want.
But marketers should act now. The Federal Trade Commission's non-binding Guides for Environmental Marketing Claims are due for review this year. Instead of attempting to overturn the California law, the industry should bring all of its forces to bear on Washington, to help persuade the FTC to create a binding trade regulation rule.
Although in its current anti-regulatory mood, Congress may not be disposed to listen to the industry, the government at least claims to be more attuned to the people than ever before. And the people clearly want regulation in this area. Remind Washington of that and perhaps the government will take action that will benefit not only marketers but consumers as well.M
Mr. Robbs is an associate professor in the School of Journalism & Mass Communication, University of Colorado at Boulder.