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February 25, 2013

Critics Claim There Is Something Fishy About Certified Sustainable Seafood

Consumer Advertising Law Blog

Environmentally-minded consumers rely more and more on certification labels and logos from organizations they trust to help them navigate the sea of environmental claims they encounter while grocery shopping. However, critics say that consumers may not be getting what they expect when they purchase seafood labeled with the Marine Stewardship Council's Certified Sustainable Seafood label.

According to the MSC's Certification Requirements, certification and the accompanying label communicates that a particular fishery adheres to the MSC's standards for sustainability, including the use of fishing practices that will not deplete fish populations. If a fishery wishes to become certified by the MSC, it must bring in an auditor to assess its fishery according to MSC standards. Fisheries with a score of 80 or better out of 100 are granted unconditional certification. A fishery that scores between 60 and 80 may be granted conditional certification, contingent on the fishery making improvements to its fishing practices in order to reach a score of 80 within five years. The MSC's Certified Sustainable Seafood label does not differentiate between conditionally and unconditionally certified fisheries. Therefore, critics contend that consumers may be getting seafood that is less sustainable than they believe and spending more at the seafood counter without actually achieving any environmental benefit.

This controversy is a reminder that marketers using or who want to use environmental seals or certification should pay close attention to the FTC's revised Green Guides. The FTC declined to specifically address "sustainability" claims in the Green Guide because it found through consumer research that the term does not have a single meaning understood by a significant number of consumers. However, marketers are still responsible for substantiating any claims that would be reasonably understood by consumers, even those conveyed by the use of third-party certifications. Moreover, the Green Guides warn marketers to avoid making "unqualified general environmental benefit claims" and notes that such claims are "difficult to interpret and likely convey a wide range of meaning."

Although the Green Guides don't provide guidance for sustainability claims, they do provide guidance on the use of environmental seals and certifications like the Certified Sustainable Seafood label. According to the Green Guides, the use of a seal or certification likely conveys a general environmental benefit, unless it conveys the basis for the award. MSC requires marketers to print text along with the label that explains that the label means that the fishery meets MSC's standards and provides MSC's web address, an approach used in the Green Guides' examples. The question in that and similar situations would be whether it adequately conveys the basis for the award and the limits of the potential environmental benefits.

© Arnold & Porter Kaye Scholer LLP 2013 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

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Matthew Shultz
Matthew Shultz
Counsel
Washington, DC
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