Greenwashing Risk Assessment

Our ESG litigators help companies develop practical, proactive strategies to limit their exposure to greenwashing claims, reduce the likelihood of costly and disruptive claims, and increase the chances of successfully defending against them. We have several decades of litigation and trial experience, which includes working with experts on substantiation of green-related claims and defending against claims of deceptive marketing and unfair advertising. Our litigation proficiency, coupled with our regulatory counseling experience, enables us to identify your company’s greenwashing risks and develop effective mitigation strategies.

Scope & Methodology

To identify greenwashing risks that might expose your business to potential claims, we evaluate selected marketing claims, products or services. We meet with your company’s key legal, ESG and marketing personnel to help develop a strategy that mirrors the company’s sustainability efforts and complies with the relevant guidance on the marketing of environmental benefit claims. We review public statements about your products or services to analyze risk transfer options involved in the supply chain. We then assess the risk that the selected marketing claims, products or services might be the subject of greenwashing claims and the litigation, regulatory and reputational impact of those claims. We prioritize the risks to be addressed and offer mitigation strategies designed to reduce claims and increase defensibility. Because businesses must operate in the real world, and not the theoretical world, we focus on addressing your greenwashing exposure through practical risk reduction strategies that are consistent with your business practices.

Deliverables

Our greenwashing risk assessment will culminate in a privileged and confidential report that identifies the greenwashing risks associated with the marketing claims, products or services reviewed and offers several risk mitigation strategies.

Fixed Fee

Because we are sensitive to the growing pressure to manage costs, we conduct our greenwashing risk assessment for a fixed fee, which is determined by the number and nature of the marketing claims, products or services reviewed, your company’s size and number of affiliates, the complexity of your supply chain, and the nature of your business. We provide our quote up front, after we agree on the scope of the risk assessment.

Additional Value-Added Offerings

Examples of other services we provide to help identify, address and mitigate risk include:

Provide greenwashing compliance counseling

• Assist companies in establishing ESG review committees.
• Conduct greenwashing risk assessments for merger and acquisition targets.
• Review new product or service offerings and advise on related greenwashing risks.
• Evaluate new products for compliance with applicable guidance and statutes.
• Prepare comments on pending legislation or proposed rules regulating unfair and deceptive trade practices.
• Review quality control, recordkeeping, and auditing practices.

Review website, social media & marketing materials

• Review and prepare product warnings, labels and instruction manuals.
• Review advertising, sales and marketing materials, websites and other product communications to identify and eliminate unintended warranties and representations.
• Review proposed marketing strategies to ensure products are marketed in a manner that does not create additional risks for the company.

Review contracts & risk transfer options

• Review and prepare product warranties, disclaimers, shipping documents and other contractual provisions to limit or transfer liability where appropriate.
• Review contracts to determine the extent to which they effectively limit liability.
• Develop best practices for purchase and sales procedures to avoid “battle of the forms” issues.
• Create effective methods to limit liability in purchase and sales documents and to document changes to specifications.

Advise on crisis response & investigation strategies

• Counsel on responding to greenwashing accusations and develop strategies for internal investigations.
• Develop response strategies for government and congressional inquiries and investigations.
• Establish protocols for handling customer complaints or requests for substantiation.

Agency Experience

We handle a broad range of cases and matters involving state and federal regulatory agencies and are available around the clock to assist clients with compliance issues and related litigation. Our experience encompasses a long list of agencies, including:

• Federal Trade Commission
• Commodity Futures Trading Commission
• Securities and Exchange Commission
• State attorneys general