279 

Greenwashing 2.0 

Eric L. Lane* 

Introduction ........................................................................................... 280 
I.  Greenwashing 1.0 ............................................................................. 283 

A.  The Environmental Movement Creates Green Marketing .......... 283 
B.  Early Greenwashing Cases:  Establishing the Traditional 

Paradigm ..................................................................................... 285 
C. The Growth of Traditional Paradigm Cases and Government 

Responses ................................................................................... 288 
D.  Minimal Clean Tech Commerce ................................................. 295 

II.  The Clean Tech Revolution:  Investment, Innovation, and 

Commercialization .......................................................................... 297 
A.  The Start of a Revolution and the Birth of an Industry ............... 297 
B.  The Large and Complex Web of Commercialized Clean Tech ... 300 

III.  The New Greenwashing Paradigm ................................................ 303 
A.  Introducing the New Paradigm .................................................... 303 
B. Breach of Contract and Breach of Warranty Cases ...................... 305 

1.  DeWind v. Glenmore Wind Farm ............................................ 305 
2.  Kumeyaay v. Gamesa ............................................................... 307 
3.  D.G. Cogen Partners v. Hess Microgen .................................. 309 

C.  New Paradigm Eco-mark Infringement Cases ............................ 311 
1.  Suntech Fights Eco-mark Outlaws ........................................... 312 
2.  Nordic Battles an Ill Wind ....................................................... 314 
3.  Voltaix v. NanoVoltaix ............................................................. 315 
4.  Enviance’s Environmental Software Eco-mark ....................... 316 
5.  Lighting Science Group:  Bridging Both Paradigms ............... 317 

D.  New Paradigm Fraud Cases ........................................................ 318 
IV.  Implications and Recommendations .............................................. 319 

A.  The Greenwashing Blind Spot .................................................... 320 
B.  Implications of New Paradigm Cases .......................................... 323 

1.  A Larger Problem than We Thought........................................ 323 
2.  More Complex Role of the Green Brand Owner ..................... 324 

 

 * Adjunct Professor, Thomas Jefferson School of Law.  He is the author of Clean Tech 

Intellectual Property:  Eco-marks, Green Patents, and Green Innovation (Oxford University Press 

2011) and the founder and author of Green Patent Blog. 



 

280 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

3.  Very Limited Public Oversight ................................................ 326 
C. Recommendations ....................................................................... 326 

1.  Further Research on Greenwashing Activity, Players, and 

Case Results ............................................................................ 326 
2.   Government Reporting Requirements and Enforcement ........ 327 

V.  Conclusion ...................................................................................... 330 
 

INTRODUCTION 

From the birth of the environmental movement in the 1960s, and 

through its growth over the last several decades, environmental 

marketing has never been far behind.  Since at least as early as the 1970s, 

advertisers and marketers have sought to capitalize on consumer 

concerns about the environment by touting environmentally friendly 

aspects of products, services, and business practices.
1
  This is no surprise, 

as the group of consumers whose purchasing decisions are influenced by 

the environmental impact of the products and services they buy has 

grown to become a large constituency.
2
 

Typically, environmental marketing claims took one of two forms, 

general corporate spin or specific product attributes.  Companies often 

portrayed themselves as responsible stewards of the environment by 

trumpeting their sustainable business practices.
3
  In many instances, the 

environmental advertising was associated with particular goods for 

individual consumers, such as energy efficient appliances or 

biodegradable diapers.
4
 

Inevitably, some of the environmental marketing claims proved false 

or misleading as rhetoric was not put into practice or products failed to 

deliver the advertised benefits.  Green skepticism was one result, and in 

1986 environmentalist Jay Westervelt coined the term “greenwashing” to 

describe marketing or PR intended to deceive consumers into believing 

that a company is practicing environmentally friendly policies and 

 

1. See infra Part I.B. 

2. See Heidi Tolliver-Nigro, Green Market to Grow 267 Percent by 2015, MATTER NETWORK 

(June 29, 2009), http://www.matternetwork.com/2009/6/green-market-grow-267-percent.cfm (“The 

market [for] products and services meeting the needs [of green] consumers is currently estimated at 

$230 billion.”). 

3. See David Hoch & Robert Franz, Eco-pornography:  False Environmental Advertising and 

How to Control It, 1 SOUTHEASTERN J.L. STUD. 113, 113 (1992) (“America is awash in a wave of 

environmentalism, and corporations are loudly proclaiming themselves green.  As Time [Magazine] 

recently observed, ‘companies are spending big sums to develop an earth-hugging image.’”). 

4. See infra Parts I.B–C (discussing consumer product greenwashing cases). 



 

2013] Greenwashing 2.0 281 

procedures.
5
  Another response was enforcement against greenwashers, 

and later, new regulations directed to environmental advertising.
6
 

As government agencies and non-governmental organizations 

investigated, studied, and combated greenwashing activity, the focus was 

on the existing flow of false or misleading information by companies 

directed to individual consumers.
7
  Indeed, for many years nearly all 

instances of greenwashing involved business-to-consumer (“B-to-C”) 

scenarios.
8
 

But times have changed.  Concern about climate change has settled 

into the public consciousness, and the environmental movement has 

produced an important offshoot, sometimes called the “clean tech 

revolution.”
9
  We are now in the midst of this clean tech revolution—an 

unprecedented period of sustained innovation and commercialization of a 

diverse array of green technologies.  Over the past decade, substantial 

and sustained investment in the development and deployment of green 

technologies—particularly renewable energy generation technologies 

such as wind turbines, solar panels, and biofuels—has significantly 

grown the green economy.
10

  Solar panels are now nearly as prevalent as 

green household cleaners.
11

 

The clean tech boom has given rise to a much more complex stream of 

green commercial marketing activity.  Much of the green economy today 

involves business-to-business (“B-to-B”) deals, with clean tech 

companies marketing their green branded equipment, products, and 

services to developers, utilities, and retailers.
12

  It is now just as common 

for large manufacturers like Vestas to market wind turbines to 

 

5. See Glenn Swain, On the Alert for Misleading Ads, N.Y. TIMES GREEN BLOG (Nov. 16, 2011, 

3:55 PM), http://green.blogs.nytimes.com/2011/11/16/on-the-alert-for-misleading-ads/ (“The term 

‘greenwashing’ was coined by the New York environmentalist Jay Westervelt in a 1986 essay on the 

hotel industry’s recommendation that guests reuse their towels rather than demand fresh ones each 

day to help the environment.”). 

6. See infra Part I.C (discussing anti-greenwashing enforcement actions and the FTC Green 

Guides). 

7. See infra Parts I.C, IV.A (discussing consumer products greenwashing cases, media coverage, 

research, and scholarly articles about greenwashing and its effects on individual consumers). 

8. See infra Parts I.B–C (discussing consumer products greenwashing cases). 

9. See, e.g., RON PERNICK & CLINT WILDER, THE CLEAN TECH REVOLUTION:  THE NEXT BIG 

GROWTH AND INVESTMENT OPPORTUNITY 1–2 (2007) (“Following on the heels of the computer, 

Internet, and biotech revolutions, “clean tech” is bringing unprecedented opportunities for wealth 

creation, high-growth career development, and innovative solutions to a range of global problems.”). 

10. See infra Part II. 

11. See, e.g., Solar Panel Installation & Installers, CLEANENERGYAUTHORITY.COM, http://ww 

w.cleanenergyauthority.com/solar-installers (last visited Feb. 20, 2013) (cataloguing solar installers 

by state). 

12. See infra Parts II.B, III.A–B. 



 

282 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

commercial consumers such as utilities and developers as it is for Clorox 

to market green cleaners to households.
13

  As clean tech has become big 

business, green marketing has expanded beyond advertising of products 

to individual consumers into B-to-B communications regarding clean 

tech products and services to green commercial consumers.
14

 

This Article argues that this period of unprecedented clean tech 

innovation requires a new paradigm for thinking about greenwashing.  

Specifically, it is essential that the paradigm shift from almost exclusive 

focus on B-to-C environmental advertising directed to individual green 

consumers to an expanded and more nuanced view that also includes B-

to-B representations made to commercial consumers.  This new 

paradigm would define greenwashing expansively to include any false or 

misleading claim regarding the environmental benefit of a product, 

service, or business practice.  Its analysis should not be limited to cases 

brought by or on behalf of individual consumers, but should also 

contemplate legal actions by and on behalf of green commercial 

consumers. Changing the greenwashing paradigm in this way will reflect 

the commercial realities of the clean tech revolution, and will provide the 

broader vantage point necessary to identify instances of greenwashing 

and understand its prevalence and effects. 

Part I of this Article provides a brief historical overview of 

environmental marketing claims, reviews the traditional paradigm 

greenwashing cases brought in response to such claims, and summarizes 

the scholarly reaction to the greenwashing phenomenon.  Part I also 

places environmental marketing in context by observing that until the 

1990s, there was minimal commercialization of green technologies and 

essentially no clean tech industry.  Part II describes the advent of the 

clean tech revolution and explains the complex commercial ecosystem it 

has created.  Part II also argues that the maturation of the clean tech 

industry, which brought many commercial players interacting in B-to-B 

relationships, provided fertile ground for the emergence of the new 

greenwashing paradigm cases.  In Part III, the Article discusses these 

new paradigm cases that have accompanied the clean tech boom, 

catalogs the common types of cases that have arisen under the new 

 

13. See Business Case Certainty, VESTAS, http://video.vestas.com/video/2100182/business-case-

certainty (last visited July 2, 2013) (“Business case certainty means ensuring a predictable turbine 

performance year on year.”); see also Leah Anderson, Vestas:  The World of Wind Energy, LEAH 

ANDERSON, http://heyleahhenderson.com/37408/363393/work/vestas-wind-energy (last visited May 

14, 2013) (detailing the “Science of Certainty” campaign around the 2012 launch of a new Vestas 

wind turbine). 

14. See id. 



 

2013] Greenwashing 2.0 283 

paradigm, and describes the importance of these cases.  This Part also 

takes note of the greenwashing “blind spot” in the media, research 

organizations, and commentators, none of which have focused attention 

on green commercial consumer cases.  Part IV discusses the implications 

of the new paradigm cases, recommends some areas of inquiry for future 

research, and suggests some policies for monitoring and combating the 

new paradigm cases. 

I.  GREENWASHING 1.0 

This Part provides an historical overview of environmental marketing 

and presents the evolution of legal action against false and misleading 

environmental marketing claims.  It covers the birth and growth of 

greenwashing and legal responses to it from the 1970s to the present day.  

During most of this period the clean tech industry did not exist, and 

commercial activity in green technology goods was negligible.
15

  As 

such, nearly all of the greenwashing cases from the early 1970s to the 

end of the 1990s were traditional paradigm cases involving B-to-C 

marketing of consumer products.
16

 

A.  The Environmental Movement Creates Green Marketing 

Though hard to believe today, there once was a time when advertising 

and marketing were nearly devoid of environmental claims.  The modern 

environmental movement was born in the 1960s,
17

 and it was not until 

the 1970s that firms began to integrate environmental concerns into 

business and marketing strategies.
18

  Then, due to a variety of catalysts, 

environmental marketing grew substantially in the 1980s.
19

 

 

15. See infra Part I.D. 

16. See infra Part I.B–C (discussing consumer products greenwashing cases).  

17. See Ajay Menon & Anil Menon, Enviropreneurial Marketing Strategy:  The Emergence of 

Corporate Environmentalism as Market Strategy, 61 J. MKTG. 51, 52 (1997) (“Environmental 

historians trace the birth of modern environmental activism in the United States to 1962, the year 

Rachel Carson’s book, The Silent Spring, was published.”) (internal citations omitted). 

18. See id. (“The natural environment did not have a significant impact on the practice of 

marketing until the 1970s.”); see also id. at 53 (“[T]he period from 1970–1985 saw the beginning of 

integration, albeit weak, of environmental concerns and business and marketing strategies through 

what Fischer and Schot (1993) call resistant adaptation, or what Varadarajan and Menon (1988) call 

mandated corporate responsibility.”) (emphasis in original). 

19. See David Gibson, Comment, Awash in Green:  A Critical Perspective on Environmental 

Advertising, 22 TUL. ENVTL. L.J. 423, 428 (2009) (“During the early 1980s, however, environmental 

marketing experienced a surge in popularity and the complexity of environmental marketing issues 

proved too complex for the existing rules to adequately address.”); see also Roscoe B. Starek III, 

Comm’r, Fed. Trade Comm’n, Address before the Intellectual Property Law Committee of the 



 

284 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

This growth was largely attributable to certain changes in the 

environmental movement, government policy, and corporate strategy.  

One reason for the surge was a shift in strategy of the environmental 

movement.
20

  During this period, environmental organizations became 

less ideological and more professional and pragmatic.
21

  They also forged 

more constructive relationships with policymakers and with each other.
22

  

As a result of this collaboration, the environmental movement channeled 

its influence into generating tangible solutions.
23

 

Increased governmental regulation of business activities impacting the 

environment was a significant factor in corporate decision making.
24

  

Two major legislative achievements of this time were the Clean Air Act
25

 

and the Clean Water Act.
26

  Signed into law in 1970, the Clean Air Act 

laid out the Environmental Protection Agency’s (“EPA”) responsibilities 

for improving air quality and protecting the ozone layer.
27

  The Clean 

Water Act consisted of major amendments to a 1948 environmental law 

and established the framework for regulating surface water quality and 

pollutant discharge into the waters of the United States.
28

  Both continue 

to be viewed as landmark pieces of environmental legislation.
29

 

 

Chicago Bar Association Young Lawyers Section:  Brief Review of the FTC’s Environmental and 

Food Advertising Enforcement Programs (Oct. 13, 1995), available at http://www.ftc.gov/speeches/ 

starek/rbsgre.shtm (“Although the FTC prosecuted some environmental claims in the 1970s, it was 

really in the late 1980s and early 1990s that environmental marketing mushroomed.”). 

20. See Menon & Menon, supra note 17, at 54 (“The environmental movement also changed in 

two significant ways in the mid-1980s.  First, it adopted a professional rather than an ideological 

philosophy.  Second, as adversaries sought new ground on which to become allies, the relationships 

between the environmentalists and the lawmakers changed from confrontational to 

accommodative.”). 

21. Id. 

22. Id. (“[A]s adversaries sought new ground on which to become allies, the relationships 

between the environmentalists and the lawmakers changed from confrontational to 

accommodative.”) (internal citation omitted). 

23. Id. at 54. 

24. Id. at 53. 

25. Clean Air Act, 42 U.S.C. §§ 7401–7671q (2012). 

26. Clean Water Act, 33 U.S.C. §§ 1251–1387 (2012). 

27. See Clean Air Act,  EPA, http://www.epa.gov/air/caa/ (last updated Feb. 17, 2013) (“The 

Clean Air Act is the law that defines EPA’s responsibilities for protecting and improving the 

nation’s air quality and the stratospheric ozone layer.”). 

28. See Summary of the Clean Water Act, EPA, http://www.epa.gov/regulations/laws/cwa.html 

(last updated Feb. 24, 2013) (describing the Clean Water Act as the primary statute for regulating 

discharges of pollutants into U.S. waters and that an outgrowth of earlier legislation, called the 

Federal Water Pollution Act). 

29. See 40th Anniversary of the Clean Air Act, EPA, http://www.epa.gov/air/caa/40th.html (last 

updated Jan. 21, 2011) (“The U.S. Environmental Protection Agency is celebrating the 40th 

anniversary of the signing of the Clean Air Act Amendments, a landmark piece of legislation that 

has led to significant environmental and public health benefits across the United States.”); Carol M. 



 

2013] Greenwashing 2.0 285 

Corporate environmentalism also developed during this period.
30

  

Important for this discussion is the fact that corporations changed their 

focus from environmental factors arising in the context of inputs and 

internal activity of the firm to a more results- or output-oriented 

approach.
31

  One of those outputs was marketing, so this shift gave rise to 

more environmental marketing as well as new experimental approaches 

to solve environmental problems.
32

 

Perhaps most salient was a significant demand-side increase in 

consumer desires to make environmentally responsible purchasing 

decisions.
33

  Data from a number of contemporaneous consumer surveys 

reflected this trend.  For instance, consumers indicated they would avoid 

products they thought were harmful to the environment.
34

  The polls also 

showed that consumers would buy products based on environmental 

marketing messages and would actually pay more for environmentally 

beneficial products.
35

  In sum, the 1980s and early 1990s was a time of 

rapid and substantial growth in both supply of and demand for products 

marketed as having reduced environmental impact. 

B.  Early Greenwashing Cases:  Establishing the Traditional Paradigm 

Some of the earliest instances of suspect environmental marketing 

claims occurred in the 1970s, long before concern about climate change 

had settled into the public consciousness.
36

  At that time, those contesting 

deceptive environmental marketing were focused on protecting 

individual consumers from advertising claims made about consumer 

 

Browner, Adm’r, Envtl. Prot. Agency, Remarks Prepared for Delivery:  25th Anniversary of the 

Clean Water Act (Oct. 17, 1997), available at http://yosemite.epa.gov/opa/admpress.nsf/a162fa4bfc 

0fd2ef8525701a004f20d7/872d86a1679743df8525701a0052e3a5!OpenDocument&Highlight=0 

(“The Clean Water Act passed both Houses of Congress by overwhelming, bipartisan margins.  And 

America finally got serious about addressing the pollution threat and restoring the quality of the 

nation’s waters.  By any measure, this landmark legislation has been hugely successful.”). 

30. Menon & Menon, supra note 17, at 53. 

31. Id. (“Free market environmentalism shifted the emphasis of the regulations from what was an 

input or activity orientation to an output or results orientation.”).   

32. Id. (“This shift of emphasis broadened the context for environmental marketing, and firms 

began experimenting with alternate, customized strategies and approaches to resolve their 

environmental problems.”) (internal citations omitted). 

33. Starek III, supra note 19 (“During [the late 1980s and 1990s], consumer interest in buying 

environmentally compatible products grew dramatically.  Various consumer polls found that 

shoppers changed their purchasing decisions based on concerns about the environment.”). 

34. Id.  

35. Id. 

36. See, e.g., Cartt v. Superior Court, 124 Cal. Rptr. 376, 378 (Ct. App. 1975) (A class action 

about fuel additives mentions the environment only once in passing). 



 

286 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

products.  The vast majority of published legal decisions from this period 

involved accusations of false advertising brought by and on behalf of 

individual consumers. 

A significant early environmental marketing case involved advertising 

claims by Standard Oil about a gasoline additive called Chevron F-310.
37

  

As the new decade commenced, the oil company began an extensive 

advertising campaign touting the fuel additive as an environmentally 

friendly product.
38

  In January of 1970, advertisements appeared in 

various California media representing that Chevron F-310 would 

“produce a significant reduction of exhaust emissions and of resulting air 

pollution.”
39

 

A few months later, a class of consumers who had collectively 

purchased at least 300 million gallons of F-310 gasoline filed a class 

action suit against Standard Oil alleging that the advertising claims were 

false.
40

  Specifically, Cartt, the named plaintiff, alleged that Chevron F-

310 did not alter exhaust emissions, or worse, actually harmed 

automobiles and the environment.
41

  The litigation was delayed for 

several years pending a separate proceeding before the U.S. Federal 

Trade Commission (“FTC”) involving similar charges in connection with 

the same ads.
42

  In a third, unrelated proceeding before the FTC, a pair of 

individuals filed a complaint alleging that the F-310 ads were deceptive 

and misleading.
43

 

Another action in the early 1970s sought to protect individual 

consumers from allegedly misleading advertisements by certain 

automakers and gasoline companies.
44

  Friends of the Earth petitioned 

the Federal Communications Commission in response to ads by Ford 

touting automobile “performance,” ads by Chevrolet stressing the great 

value of the size of its automobiles, and an ad for a “cold-weather” 

gasoline.
45

  The group argued that the products contributed to air 
 

37. Neckritz v. FCC, 502 F.2d 411 (D.C. Cir. 1974) (petition to review a Federal 

Communications Commission order regarding a complaint about Standard Oil of California 

advertisements for Chevron gasoline with the F-310 additive); see also Cartt, 124 Cal. Rptr. at 378. 

38. Cartt, 124 Cal. Rptr. at 378 (“[Plaintiff] alleged, in substance, that starting in January 1970 

Standard extensively advertised the value of ‘Chevron F-310’ gasoline in various media.”). 

39. Id. 

40. Id. (“In April 1970, plaintiff Cartt, purporting to represent herself and all Standard credit card 

purchasers, filed her class action.  She alleged, in substance, that starting in January 1970 Standard 

extensively advertised the value of ‘Chevron F-310’ gasoline in various media.”).  

41. Id. 

42. Id.  

43. See Neckritz v. FCC, 502 F.2d 411, 412–13 (D.C. Cir. 1974) . 

44. Friends of the Earth v. FCC, 449 F.2d 1164, 1164–65 (D.C. Cir. 1971). 

45. Id. at 1166. 



 

2013] Greenwashing 2.0 287 

pollution and that the ads deceptively signaled that the products 

presented no health hazards.
46

 

Toward the end of the decade, the FTC warned consumers about 

potentially misleading advertisements in connection with a variety of 

devices and features intended to improve fuel efficiency.
47

  The products 

included air-bleed devices that purported to add air to the fuel mixture, 

pills for lowering energy friction, oil additives to reduce friction, vapor 

injectors to add water vapor to the carburetor, and spark-intensifiers, 

which were supposed to promote better combustion.
48

  Testing by the 

EPA and other organizations revealed that a number of the advertised 

devices did not provide significant fuel economy benefits.
49

 

These types of false or misleading claims directed at individual 

consumers continued into the 1980s.  In 1983, the U.S. Postal Service 

stopped the mail of National Fuelsaver Corporation because of false 

advertising in connection with the company’s mail-order Gasaver 

product.
50

  National Fuelsaver’s ads claimed the product passed an EPA 

test and could improve fuel economy by up to 48.3%.
51

  According to the 

Postal Service, those claims were false because the Gasaver’s fuel 

economy boost was only 5%.
52

 

Even when climate change began to appear as an occasional impetus 

for false advertising challenges, the disputed ads fell within the 

traditional greenwashing paradigm.  In the late 1980s, the Association for 

the Conservation of Energy protested to Britain’s Advertising Standards 

Authority about ads by British Gas that claimed that natural gas is 

“earth’s cleanest fuel.”
53

  The environmental group objected that the ads 

 

46. Id. at 1165–66 (“Petitioners asserted, contrarily, that these products were especially heavy 

contributors to air pollution . . . . They reasserted their contentions that the large-car and 

highpowered gasoline advertisements carried by the licensee were designed to promote the idea that 

these products presented no health hazards in fact.”). 

47. Jeffrey Mills, Washington Dateline, ASSOCIATED PRESS, Aug. 28, 1979 (“A host of 

‘gasoline-saving’ gadgets is being touted to the public, but the government says it has not yet found 

one that actually improves mileage.  The Federal Trade Commission says it knows of about 100 such 

devices now on the market, frequently with heavy advertising . . . .”). 

48. Id. 

49. Id. (“‘Although all devices on the market haven’t been tested by the government, controlled 

scientific tests on a number of them do not show any significant improvement in fuel economy for 

cars in which they were installed,’ the FTC said.  Larry Kahn, author of the fact sheet, said Tuesday 

that at least six types of devices have been tested by the Environment Protection Agency . . . .”). 

50. Jeffrey Mills, Postal Service Acts Against ‘Gasaver’ Mail-Order Product, ASSOCIATED 

PRESS, May 6, 1983 (on file with the Journal). 

51. Id.  

52. Id.  

53.  Amanda Brown, British Gas Accused Over ‘Clean Fuel’ Adverts, PRESS ASS’N, Oct. 16, 

1989 (on file with the Journal). 



 

288 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

failed to mention that using natural gas releases methane, a greenhouse 

gas, into the atmosphere.
54

  The group also contended that British Gas 

was misleading the public by omitting any mention of available 

alternative energy sources that are cleaner than natural gas.
55

  By 

bringing the protest, the environmental group sought to protect individual 

consumers targeted by the corporate spin.
56

 

C.  The Growth of Traditional Paradigm Cases and Government 

Responses 

The 1990s was a time of rapid and substantial growth in environmental 

marketing, but also a time of rapid response by government watchdogs 

on behalf of individual consumers.  By the late 1980s, states were 

enforcing their consumer protection laws, as well as enacting new 

advertising regulations.
57

  The federal government also became 

increasingly active in the area.  Most notably, in response to pressure 

from state attorneys general and industry groups, in 1991 the FTC 

conducted hearings to create federal guidelines for environmental 

advertising and marketing claims.
58

  The FTC published the first iteration 

of these “Green Guides” in 1992.
59

  By presenting rules and discussing 

hypothetical illustrative examples, the Green Guides provide a 

framework for green marketers to formulate permissible environmental 

benefit claims.
60

  The Green Guides state that claims “should be 

presented in a way that makes clear whether the environmental attribute 

or benefit being asserted refers to the product, the product’s packaging, a 

service or to a portion or component of the product, package or 

service . . . .”
61

  Claims should not overstate the environmental benefit, 

either expressly or by implication.
62

  The relative specificity or 

generalization is a critical factor in determining the deceptiveness of an 

 

54. Id. 

55. Id.  

56. Id. (“Stewart Boyle, ACE energy and environment programme director, said today:  ‘British 

Gas has not only been spending millions of pounds of gas users’ money in its advertising, it has been 

blatantly misleading them through its false claims regarding environmental advantages of gas as a 

fuel.’”). 

57. Gibson, supra note 19, at 429. 

58. Id.  

59. Guides for the Use of Environmental Marketing Claims, 16 C.F.R. § 260 (2013).  

60. Id. 

61. Id. § 260.6(b). 

62. Id. § 260.6(c). 



 

2013] Greenwashing 2.0 289 

environmental claim, and the Green Guides warn against claims of 

general environmental benefits.
63

 

Although the Green Guides are not binding on the agency or the 

public,
64

 the FTC can enforce them
65

 and initiated an aggressive 

campaign against deceptive environmental advertising in the 1990s.  

Perhaps the largest single class of traditional paradigm greenwashing 

cases to date, the FTC’s environmental enforcement actions in the 1990s 

are a collection of challenges to environmental marketing of consumer 

products on behalf of individual green consumers.
66

  These actions 

included multiple cases targeting ads for plastic grocery and trash bags,
67

 

many challenges to ads for aerosol cleaning and beauty products,
68

 and a 

 

63. See id. § 260.7(a) (“[i]t is deceptive to misrepresent, directly or by implication, that a 

product, package or service offers a general environmental benefit . . . [u]nqualified general claims 

of environmental benefit are difficult to interpret, and depending on their context, may convey a 

wide range of meanings to consumers . . . .”). 

64. See id. § 260.1 (“[The guides] do not confer any rights on any person and do not operate to 

bind the FTC or the public.”). 

65. See id. (“The Commission, however, can take action under the FTC Act if a marketer makes 

an environmental claim inconsistent with the guides.”). 

66. See generally The FTC’s Environmental Cases, FTC, http://www.ftc.gov/bcp/grnrule/enviro 

n-cases.htm (last visited Jan. 3, 2013) (listing the FTC environmental cases from 1990–2000). 

67. See, e.g., BPI Envtl., Inc., 118 F.T.C. 930, 930–33 (1994), 1994 WL 16011113, at *1–3 

(challenging claims that BIO-SAC and PHOTO-SAC plastic grocery store bags are “degradable” 

and “biodegradable”); N. Am. Plastics Corp., 118 F.T.C. 632, 633–37, 1994 WL 16011102, at *1–2 

(challenging “biodegradable” and landfill benefit claims for EnviroGard plastic trash bags); Mobil 

Oil Corp., 116 F.T.C. 113, 113–18, 1993 WL 13009606, at *1–2 (1993) (challenging claims about 

Hefty Degradable plastic trash bags); First Brands, Corp., 115 F.T.C. 1, 1–6, 1992 WL 12011023, at 

*1–2 (1992) (challenging claims that Glad plastic trash bags are “degradable,” “safe for the 

environment” and “environmentally friendly).  

68. See, e.g., RBR Prods., Inc., 61 Fed. Reg. 42616-01, 42, 617 (Fed. Trade Comm’n Dec. 10, 

1996) (notice of proposed consent agreement) (challenging claims that an aerosol fingernail glue 

drying spray is an “environmental formula” and that the aerosol can is “recyclable”); Mattel, Inc., 

119 F.T.C. 969, 969–72, 1995 WL 17012633, at *1–2 (1995) (challenging the claim that an aerosol 

foam soap product “Contains no Chlorofluorocarbons (CFC’s)”); Creative Aerosol Corp., 119 F.T.C. 

13, 13–18, 1995 WL 17012577, at *1–4 (1995) (challenging claims that an aerosol foam soap 

product is “environmentally safe” and “contains no fluorocarbons” and claims that the aerosol can 

and cap are “recyclable”); G.C. Thorsen, Inc., 116 F.T.C. 1179, 1179–86, 1993 WL 13009670, at 

*1–2 (1993) (challenging claims that each of the “AirDuster” and “Airjet II” aerosol cleaning 

products is “ozone friendly,” “environmentally responsible,” and “does not contain CFCs or other 

ozone damaging components”); Texwipe Co., 116 F.T.C. 1169, 1169–74, 1993 WL 13009669, at 

*1–3 (1993) (challenging claims that aerosol cleaning products are “ozone safe” and 

“environmentally safe”); PerfectData Corp., 116 F.T.C. 769, 769–72, 1993 WL 13009651, at *1–3 

(1993) (challenging claims that the PerfectDuster II aerosol cleaning product is “ozone friendly,” 

“with ozone guard,” and “contains no ozone depleting CFCs”); Tech Spray Inc., 115 F.T.C. 433, 

433–40, 1992 WL 12011045, at *1–3 (1992) (challenging claims that aerosol cleaning products are 

“CFC free,” “ozone friendly formula,” and “ozone friendly”); Jerome Russell Cosmetics, U.S.A., 

Inc., 114 F.T.C. 514, 514–19, 1991 WL 11008538, at *1–2  (1991) (challenging claims that an 

aerosol hair spray is “ozone safe,” “ozone friendly,” and “contains no fluorocarbons”).  



 

290 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

host of actions involving packaging, tableware and food service 

products.
69

  Other products the FTC targeted for false or misleading 

environmental marketing claims during this period include disposable 

diapers,
70

 laundry detergent products,
71

 and gasoline, motor oil, and 

automobile care products.
72

 

Private actions against greenwashing also continued in the 1990s.  

Though there were occasional instances of litigation between competing 

 

69. See, e.g., Amoco Foam Prods. Co., 118 F.T.C. 194, 194–200, 1994 WL 16011087, at *1–2 

(1994) (challenging claims that polystyrene foam plates, cups, and other food service products are 

“recyclable”); Keyes Fibre Co., 118 F.T.C. 150, 150–64, 1994 WL 16011085, at *1–4 (1994) 

(challenging claims that Chinet paper plates are “recyclable,” “biodegradable,” and “compostable” 

in municipal solid waste composting facilities); AJM Packaging Corp., 118 F.T.C. 56, 56–60, 1994 

WL 16011080, at *1–2 (1994) (challenging claims that Nature’s Own Green Label paper plates are 

“biodegradable” and “recyclable”); LePage’s Inc., 118 F.T.C. 31, 31–37, 1994 WL 16011078, at *1–

3 (1994) (challenging claims that the plastic dispensers and paperboard packaging for adhesive tape 

are “recyclable” and the tape product is “biodegradable”); Oak Hill Indus. Corp., 118 F.T.C. 44, 44–

50, 1994 WL 16011079, at *1–2 (1994) (challenging claims that plastic tableware and plastic film 

packaging are “recyclable”); America’s Favorite Chicken Co., 118 F.T.C. 1, 1994 WL 16011076 1–

3, at *1–2 (1994) (challenging claims that fast food paper packaging that becomes food-

contaminated is “recyclable”); Mr. Coffee, Inc., 117 F.T.C. 156, 156–63, 1994 WL 16010981, at *1–

3 (1994) (challenging claims that Mr. Coffee filters are made by a “chlorine-free” manufacturing 

process producing no harmful byproducts and are made with “recycled paper” and that the product’s 

packaging is “recyclable”); White Castle Sys., Inc., 117 F.T.C. 1, 1–4, 1994 WL 16010965, at *1–2 

(1994) (challenging claims that fast food paper packaging that becomes food-contaminated is 

“recyclable”);  

70. See RMED Int’l, Inc., 115 F.T.C. 572, 572–83, 1992 WL 12011051, at *1–3 (1992) 

(challenging claims that Tendercare disposable diapers are “biodegradable”); Am. Enviro Prods., 

Inc., 115 F.T.C. 399, 399–405, 1992 WL 12011043, at *1–2 (1992) (challenging “biodegradable” 

and landfill benefit claims for Bunnies disposable diapers). 

71. See Stipulated Final Judgment, FTC v. OneSource Worldwide Network, Inc., 3-99 CV1494-

L (N.D. Tex. July 1, 1999), available at http://www.ftc.gov/os/1999/07/onesourcesfj.pdf (stipulating 

monetary and injunctive relief arising from OneSource’s false claims that liquid-filled discs are an 

effective and non-polluting substitute for laundry detergents); Complaint ¶¶ 21–24, FTC v. Tradenet 

Marketing, Inc., No. 99-944-CIV-T-24B (M.D. Fla. Apr. 21, 1999), available at  http://www.ftc.gov 

/os/1999/04/cmplt1.htm (alleging as false claims that liquid-filled balls would clean laundry without 

polluting the earth’s waterways). 

72. See Dura Lube Corp. et al., Docket No. 9292, 2000 WL 561696 (Fed. Trade Comm’n, May 

3, 2000) (ordering monetary and injunctive relief arising from claims that a motor oil additive 

reduces emissions); Blue Coral, Inc. et al., Docket No. 9280, 1997 WL 409304 (Fed. Trade 

Comm’n, Jul. 23, 1997) (ordering Blue Coral to cease and desist from making claims that an engine 

treatment product reduces toxic emissions); Amoco Oil Co., 121 F.T.C. 561, 561–83, 1996 WL 

33412051, at *1–4 (1996) (challenging claims that “Crystal Clear Amoco Ultimate” gasoline 

provides better engine performance and environmental benefits than other premium gasolines); Safe 

Brands Corp., 121 F.T.C. 379, 379–99, 1996 WL 33412042, at *1–7 (1996) (challenging claims that 

“Sierra” antifreeze is, inter alia, environmentally safe, safer for the environmental than conventional 

antifreeze, and recyclable); Nationwide Indus., 116 F.T.C. 853, 853–58, 1993 WL 13009657, at *1–

2 (1993) (challenging claims that “Snap Fix-a-Flat” aerosol tire inflator products contain “no CFC” 

and are “environment friendly”). 



 

2013] Greenwashing 2.0 291 

businesses,
73

 more common were individual consumer lawsuits and 

consumer class actions.
74

  In an example of these traditional 

greenwashing cases, a class of individual consumers sued the Mobil 

Chemical Company (“Mobil”), alleging false advertising in connection 

with the company’s advertisements for Hefty “degradable” garbage 

bags.
75

  The class action asserted that Mobil’s statement that the bags 

would “break down into harmless particles even after they are buried in a 

landfill” was false and misleading because the bags would not actually 

degrade, but would instead break into smaller, yet still environmentally 

harmful, plastic particles.
76

 

With the prevalence of traditional paradigm greenwashing cases in the 

1990s, it is no surprise that academic literature from this period primarily 

addressed this view.  Contemporaneous scholarly articles on 

greenwashing typically described the phenomenon, analyzed the existing 

regulatory framework for combating it, and offered ideas for controlling 

it.
77

  Scholars examining this issue consistently focused on 

environmental marketing claims directed to individual consumers and 

their effects on those consumers.  David Hoch and Robert Franz decried 

the “consumer skepticism” that “stems in large part from false 

environmental advertising.”
78

  Hoch and Franz also noted consumers’ 

frustration at being unable to determine whether products are truly 

ecological or to comprehend the meanings of commonly used terms such 

as “biodegradable” and “recyclable.”
79

  “To consume ‘greenly,’” they 

observed, consumers “must receive accurate information.”
80

  E. Howard 

Barnett emphasized the impact environmental marketing claims have on 

 

73. See, e.g., Fuller Bros., Inc. v. Int’l Mktg., Inc., 870 F. Supp. 299,  (D. Or. 1994). 

74. See, e.g., Delgozzo v. Kenny, 266 N.J. Super. 169, 195 (App. Div. 1993) (directing 

certification of class of consumers challenging Blueray “blue flame” boilers advertised as cleaner 

and more efficient than traditional boilers); Brittingham v. Mobil Corp., 943 F.2d 297, 297 (3d Cir. 

1991) (affirming summary judgment for defendant of dismissal of RICO claims related to 

advertising of Hefty garbage bags as “degradable”). 

75. See Brittingham, 943 F.2d at 299 (“Plaintiffs are individual consumers who purchased the 

bags.”). 

76. See id.  

77. See, e.g., E. Howard Barnett, Green with Envy:  The FTC, the EPA, the States, and the 

Regulation of Environmental Marketing, 1 ENVTL. LAW. 488, 495-504, 507-510 (1995) (discussing 

the various regulations available to enforce truth in environmental marketing and arguing for 

enactment of uniform federal regulations); Hoch & Franz, supra note 3, at 113-116, 128 (describing 

false environmental advertising and calling for new regulations and guidelines defining green 

marketing terms and legislation imposing punitive measures on “eco-pornographic” advertising).  

78. See Hoch & Franz, supra note 3, at 116. 

79. See id.  

80. Id. at 128. 



 

292 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

consumer purchasing decisions.
81

  He discussed a survey finding that a 

large percentage of consumers would pay more for environmentally 

friendly products and regularly avoid environmentally detrimental 

products.
82

 

The turn of the century saw no slowdown in traditional paradigm 

greenwashing cases.  Government agencies continued to bring actions on 

behalf of individual green consumers and ruled against several 

purportedly green advertisements.
83

  In Britain, the Advertising 

Standards Authority required the automaker Lexus to pull an ad for its 

hybrid sport utility vehicle because the ad included the phrase “High 

Performance.  Low Emissions.  Zero Guilt.”
84

  Similarly, a probe by the 

Australian Consumer and Competition Commission forced Goodyear to 

admit that its Eagle LS2000 tire does not live up to claims made on the 

company’s Australian website that the tire is “environmentally-friendly,” 

has “minimal environmental impact,” improves fuel economy, and is 

produced by a process that results in reduced carbon dioxide emissions.
85

 

In the United States, the Department of Energy (“DOE”) went after LG 

Electronics for providing erroneous energy usage measurements in order 

to receive the Energy Star certification on a number of its refrigerator 

models.
86

  As it turned out, the refrigerators used more energy than 

advertised and did not actually meet the efficiency standards required to 

earn the certification.
87

  The DOE and LG reached a settlement 

 

81. See Barnett, supra note 77, at 493. 

82. See id. at 494 (“The Cambridge study determined that eighty percent of consumers were 

willing to pay  a little more for an environmentally-friendly product.  More significantly, almost 

sixty percent of those surveyed claimed to avoid products for environmental reasons on a regular 

basis.”) (internal quotation marks omitted). 

83. See, e.g., Press Release, Fed. Trade Comm’n, FTC Announces Actions Against Kmart, 

Tender and Dyna-E Alleging Deceptive ‘Biodegradable’ Claims (June 9, 2009), available at 

http://www.ftc.gov/opa/2009/06/kmart.shtm.  

84. ADVER. STANDARDS AUTH., EVENT REPORT:  ENVIRONMENTAL CLAIMS IN ADVERTISING.  IS 

GREEN A GREY AREA? 8 (2008), available at http://www.asa.org.uk/~/media/Files/ASA/Reports/Env 

ironmentalClaimsSeminarReport.ashx. 

85. Press Release, Austl. Competition & Consumer Comm’n, Goodyear Tyres Apologises, 

Offers Compensation for Unsubstantiated Environmental Claims (June 26, 2008), available at 

http://www.accc.gov.au/media-release/goodyear-tyres-apologises-offers-compensation-for-unsubst 

antiated-environmental-claims. 

86. See LG Elec. U.S.A., Inc. v. Dep’t of Energy, 679 F. Supp. 2d 18, 24–25 (D.D.C. 2010); see 

also Press Release, LG Elec. U.S.A., Inc., LG Electronics to Temporarily Remove Energy Star Label 

from Certain French Door Refrigerators (Jan. 19, 2010), available at http://www.lge.com/us/press-

release/article/lg-electronics-to-temporarily-remove-energy-star-label-from-certain-french-door-refri 

gerators.jsp.   

87. LG Elec. U.S.A., 679 F. Supp. 2d at 24–25. 



 

2013] Greenwashing 2.0 293 

agreement to adopt appropriate remedies.
88

  In 2010, the FTC sued light-

emitting diode (“LED”) maker Lights of America for alleged misleading 

claims regarding the product life of certain LED lamps and false and 

unsubstantiated light output comparisons between its LED lighting 

products and incandescent lamps.
89

  Some states got involved as well, 

with California enforcing a 2008 law banning the use of terms such as 

“biodegradable,” “degradable,” and “decompostable” in connection with 

plastic food or beverage containers and imposing standards for labeling 

food or beverage containers made from other materials.
90

 

There were also many private actions in the 2000s involving alleged 

deceptive advertising directed at individual consumers.  These cases 

continued even after the advent of the clean tech revolution and are likely 

to continue in the future.
91

  The products at issue included cars, cleaning 

supplies, and plastic bottles. 

Automakers’ representations about the fuel efficiency of their vehicles 

were hot topics of traditional greenwashing litigation.  Two lawsuits—an 

individual state court lawsuit and a federal class action—targeted the 

Honda Civic Hybrid.
92

  In the first suit, the plaintiff claimed that the 

vehicle was achieving less than half the miles per gallon (“MPG”) than 

the EPA estimate
93

 of forty-eight MPG when driving on the 

highway.
94

  Statements made by a Honda employee about the need to 

drive in a specialized manner
95

 diverged sharply from a Civic Hybrid 

brochure telling drivers they do not have to do “anything special” to get 

“terrific gas mileage”
96

 and instructing them to “[j]ust drive the Hybrid 

like [one] would a conventional car and save on fuel bills.”
97

  In addition, 

 

88. Agreement between the U.S. Dep’t of Energy and LG Elec., U.S.A., Inc. (Jan. 14, 2008), 

available at http://energy.gov/sites/prod/files/edg/news/archives/documents/DOE_LG_Signed_Set 

tlement_Agreement.pdf. 

89. FTC v. Lights of Am., Inc., 760 F. Supp. 2d 848, 850  (C.D. Cal. 2010). 

90. See Complaint ¶¶ 11–27, California v. ENSO Plastics, LLC, No. 00518091 (Cal. Super. Ct. 

Oct. 26, 2011), available at http://ag.ca.gov/cms_attachments/press/pdfs/n2577_complaint.pdf. 

91. See infra Part IV.A. 

92. See generally True v. Am. Honda Motor Co., 520 F. Supp. 2d 1175 (C.D. Cal. 2007); 

Paduano v. Am. Honda Motor Co., 88 Cal.Rptr. 3d 90 (2009). 

93. See id. at 97–98 (“Paduano drove the vehicle for approximately a year and became 

increasingly dissatisfied with his vehicle’s fuel economy performance. During this time, the vehicle 

achieved less than half of the EPA estimated fuel economy level.”); see also 49 U.S.C. §§ 32,901–19 

(2012) (establishing a federal regulatory scheme for measuring and disclosing automobile fuel 

economy ratings); see also id. § 32,904 (2012) (the “Administrator of the Environmental Protection 

agency shall calculate the average fuel economy of a manufacturer”).  

94. Paduano, 88 Cal. Rptr. 3d at 97–98. 

95. See id. at 97. 

96. Id. at 106–07. 

97. Id. at 104–05. 



 

294 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

in 2007 plaintiffs filed a class action against Honda, accusing the 

company of representing that the Civic Hybrid achieved fuel efficiency 

of forty-nine to fifty MPG when Honda knew or should have known that 

the actual performance of the vehicle was up to 53% below the 

advertised fuel efficiency.
98

  Plaintiffs also accused Honda of altering 

federally mandated disclaimer language regarding fuel efficiency 

estimates that appears on the standard sticker affixed to all new 

automobiles.
99

 

In 2012, a host of consumer class actions targeted Hyundai and Kia, 

accusing the automakers of making false or misleading claims that 

certain model vehicles achieve gas mileage in the forty MPG range.
100

  

According to some of the complaints, an EPA investigation prompted by 

consumer inquiries found that the gas mileage was overstated in seven 

Hyundai models and six Kia models, with as much as a six MPG 

discrepancy in some vehicles.
101

  The trend continued and extended to 

plug-in electric vehicles in 2012 with a class action suit accusing Nissan 

of making misleading representations and omissions regarding the 

battery capacity and driving range of the LEAF, its new plug-in electric 

model.
102

  The complaint alleges that the automaker inflated battery life 

claims and miles per charge numbers.
103

 

Turning from cars to cleaning supplies, another green consumer class 

action targeted the household cleaner Windex for alleged deceptive 

advertising.  In March 2009, an individual consumer filed a proposed 

class action suit accusing SC Johnson & Son of falsely implying that a 

neutral third party endorsed Windex by affixing a Greenlist label and 

certification statement on the product when, in fact, the Greenlist 

 

98. First Amended Complaint ¶¶ 3–6, True v. Am. Honda Motor Co., 520 F. Supp. 2d 1175 

(C.D. Cal. 2007) (No. EDCV 07-287-VAP (OPx)), ECF No. 48.  

99.  Id. ¶ 19. 

100. See In re Hyundai and Kia Fuel Econ. Litig., No. 2424 (U.S.J.P.M.L. Nov. 19, 2012) 

(consolidating various consumer cases into one multi-district litigation). 

101. See Complaint ¶ 31, Graewingholt v. Hyundai Motor Am., Inc., No. 8:12-cv-01963-JVS-

JPR (C.D. Cal. Nov. 9, 2012) [hereinafter Graewingholt Complaint].  

102. See Complaint ¶¶ 1 and 7, Klee v. Nissan N. Am., Inc., No. 2:12-cv-08238-DDP-PJW (C.D. 

Cal. Sep. 24, 2012). 

103. See id. ¶ 12 (“While Nissan’s owner’s manual provides that the Leaf may lose 20% of 

battery capacity over five (5) years of operation, in fact, class members’ vehicles, especially those 

vehicles exposed to warm climates, are losing over 27.5% battery capacity within the first one (1) to 

two (2) years of operation.”) (emphasis in original); see id. ¶¶ 39–40 (“Nissan misrepresented and 

failed to disclose to Class Members prior to purchase that Nissan’s estimated 100-mile range is 

based on a full charge; that Nisan [sic] itself recommended that vehicle owners not charge their 

batteries to 100% . . . .”) (emphasis in original). 



 

2013] Greenwashing 2.0 295 

designation is owned and administered by the company itself.
104

  In 

another proposed class action lawsuit filed in 2011 against Fiji Water 

Company, plaintiff alleged that a “Green Drop” design on Fiji’s water 

bottles misrepresents the product as environmentally superior to other 

bottled water and falsely connotes approval by independent third-party 

organizations.
105

 

In sum, the first three decades of environmental marketing cases were 

based almost exclusively on the traditional greenwashing paradigm, 

brought by or on behalf of individual green consumers in connection 

with advertising for consumer products.  Such cases extended into the 

twenty-first century and in all likelihood, will continue to be prevalent 

into the future even as the clean tech revolution progresses. 

D.  Minimal Clean Tech Commerce 

There is a simple reason that the traditional greenwashing paradigm—

the focus on false or misleading environmental marketing of consumer 

products to individual consumers—held throughout the 1970s, 1980s and 

1990s.  The vast majority of commerce in purportedly environmentally 

friendly products during that time was in connection with 

“biodegradable” trash bags and diapers, “recyclable” tableware, “ozone-

friendly” beauty product containers, “non-polluting” cleaning supplies, 

and “fuel efficient” gasoline and additives, which are made for and 

marketed to individual consumers.
106

  There simply were very few green 

products or technologies being produced or consumed in significant 

volumes outside of the consumer context during that period.
107

 

Certainly, there was no clean tech industry as we know it today.
108

  In 

fact, it was long before the term “clean technology” had been coined.
109

  

In the 1970s, renewable energy technologies were at a very early stage of 

development and remained the province of small players.
110

  One 

 

104. See Complaint ¶ 6–7, Koh v. SC Johnson & Son, Inc., No. 09-cv-00927 (N.D. Cal. Mar. 2, 

2009).  

105. Hill v. Roll Int’l Corp., 128 Cal. Rptr. 3d 109, 111 (Ct. App. 2011). 

106. See supra Parts I.B–I.C (discussing consumer products greenwashing cases). 

107. See PERNICK & WILDER, supra note 9, at 3 (“In the 1970s, clean tech was considered 

‘alternative,’ . . . and for good reason:  it was in an early stage of development, it was too expensive, 

it didn’t have widespread political support, and very few large, established companies were 

embracing the sector.”). 

108. See id. 

109. See id. (“Even at the start of the twenty-first century, the term clean tech wasn’t yet in the 

financial or business community’s lexicon.  If you had done a Web search on clean technology or 

clean tech in 2000, you’d have received only a few relevant results.”) (emphasis in original). 

110. See id. 



 

296 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

estimate of the penetration of solar power in 1974 put the number of 

private homes in North America entirely heated or cooled by functional 

systems at just six.
111

 

Neither wind energy nor solar power, the two significant new 

renewable energy industries, gained any traction, let alone achieved 

sustained growth or viability.  Each saw a flurry of activity in the 1970s 

followed by a steep drop off in the 1980s and 1990s.
112

  While the oil 

crises of the 1970s prompted some government support for solar 

photovoltaic technology and spurred development of the industry,
113

 the 

market did not grow significantly.
114

  In the 1980s, falling oil prices and 

Reagan-era policies hurt the industry and stunted its growth.
115

 

The U.S. wind industry followed a similar trajectory.  The federal 

government collaborated with industry to develop utility-scale wind 

turbine technology for a number of years spanning the 1970s and 

1980s.
116

  With the exception of California,
117

 however, declining oil 

prices in the 1980s and early 1990s coupled with the loss of certain tax 

incentives hampered industry growth in the United States.
118

  This was 

 

111. See The Solar Energy Book . . . Once More, MOTHER EARTH NEWS, Jan. 1975, at 16–17 (on 

file with the Journal).  

112. See Arthur Allen, Prodigal Sun, MOTHER JONES, http://www.motherjones.com/politics/200 

0/03/prodigal-sun (last visited May 17, 2013) (“Politically speaking, Sun Day – May 3, 1978 – was 

the peak of support for solar energy in the United States . . . .  The budget for the solar institute – 

which President Jimmy Carter had created to spearhead solar innovation – was slashed from $124 

million in 1980 to $59 million in 1982 . . . .”).  

113. See, e.g., MICHAEL D. PLATZER, CONG. RESEARCH SERV., U.S. SOLAR PHOTOVOLTAIC 

MANUFACTURING:  INDUSTRY TRENDS, GLOBAL COMPETITION, FEDERAL SUPPORT 4–5 (2012), 

available at http://www.fas.org/sgp/crs/misc/R42509.pdf (“The oil crises of the 1970s hastened the 

development of modern solar panels by a second generation of PV firms, which focused on ground 

applications . . . .  The first direct federal support for solar manufacturing was during the Carter 

Administration.”). 

114. See id. at 5. 

115. See id. (“President Reagan’s Tax Reform Act of 1986 reduced the Investment Tax Credit 

(ITC) to 10% in 1988, where it remained until 2005.  Because of these policy changes, combined 

with the sustained drop in petroleum prices, solar manufacturing slumped until 2005 . . . .”); see also 

Allen, supra note 112 (detailing the effects of Reagan-era policies on the solar industry). 

116. See About Wind Energy—History, WIND ENERGY FOUND., http://www.windenergyfoundati 

on.org/about-wind-energy/history (last visited Apr. 20, 2013) (“Large-scale research wind turbines 

were developed . . . to create a utility-scale wind turbine industry in the United States.  With funding 

from the National Science Foundation and later the U.S. Department of Energy, 13 experimental 

turbines were put into operation using four major wind turbine designs.”). 

117. See id. (“But in the 1980s wind energy flourished in California partly because of federal and 

state tax incentives that encouraged renewable energy sources.  These incentives funded the first 

major use of wind power for utility electricity.”); see also Wind of Change, THE ECONOMIST (Dec. 4, 

2008) http://www.economist.com/node/12673331/print (“The first wind farms sprouted in California 

in the early 1980s, beneficiaries of generous tax credits.”). 

118. See About Wind Energy—History, supra note 116. 



 

2013] Greenwashing 2.0 297 

about to change dramatically.  As described in Part II, the turn of the 

century brought the rapid rise of the clean tech industry that we know 

today. 

II.  THE CLEAN TECH REVOLUTION:  INVESTMENT, INNOVATION, AND 

COMMERCIALIZATION 

This Part chronicles the advent of the clean tech revolution—the first 

period of sustained growth in research, development, and 

commercialization of green technologies.  It discusses the surge in 

research and development and patent filings in green technologies, the 

increasing investment activity in the clean tech industry, and the 

remarkable growth of the solar, wind, and biofuels sectors in the first 

decade of the twenty-first century.  This Part observes that the clean tech 

industry that has emerged is a complex commercial ecosystem comprised 

of a number of players at different points in the stream of commerce 

engaged in high stakes B-to-B negotiations and transactions involving 

capital-intensive products and projects. 

A.  The Start of a Revolution and the Birth of an Industry 

Despite the false starts of wind and solar in the 1970s and 1980s, the 

clean tech industry today is strong, sustainable, and very diverse.  To the 

extent that it has been driven by concerns about climate change, clean 

tech can trace its psychological roots back to 1965 when an early 

climatologist published data demonstrating a striking correlation between 

the global temperature rise and the climbing level of greenhouse gas 

emissions.
119

  Generated by Hubert Lamb, a pioneer of climatology, and 

subsequently depicted in graphical form, the “hockey stick” was 

ultimately made famous by Al Gore in An Inconvenient Truth and helped 

to cement concern about climate change in the public consciousness.
120

  

 

119. See generally Hubert Lamb, The Early Medieval Warm Epoch and its Sequel, 1 

PALAEOGEOGRAPHY, PALAEOCLIMATOLOGY, PALAEOECOLOGY 13 (1965), available at http://www. 

sciencedirect.com/science/article/pii/0031018265900040; see also Climate legacy of ‘hockey stick’, 

BBC NEWS (Aug. 16, 2004), http://news.bbc.co.uk/2/hi/science/nature/3569604.stm.  The hockey 

stick, “was a term coined for a chart of temperature variation over the last 1,000 years . . . .”  The  

“high-profile publication” of this chart led to use of the term “as a key piece of supporting evidence 

in the third assessment report by the United Nations’ Intergovernmental Panel on Climate Change 

(IPCC) in 2001 . . . .”).  Id. 

120. See A. O. Scott, Warning of Calamities with a Scholarly Tone, N.Y. TIMES, May 24, 2006, 

at E1, available at http://www.nytimes.com/2006/05/24/movies/24trut.html (“I can’t think of 

another movie in which the display of a graph elicited gasps of horror, but when the red lines 

showing the increasing rates of carbon-dioxide emissions and the corresponding rise in temperatures 



 

298 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

For a technological turning point in the fight against climate change, 

however, one could point to a lesser-known hockey stick. 

A clean energy patent study published by the United Nations 

Environment Programme, the European Patent Office, and the 

International Centre for Trade and Sustainable Development contains a 

graph plotting the rate of new green technology patent application filings 

from 1978 to 2006.
121

  Tellingly, the graph reveals a spike in worldwide 

patent application filings around 1997, with substantial growth in the 

following years.
122

  The rate of increase in global patent filings was large 

and steady through 2005, at about 20% a year.
123

  This spike coincides 

with the 1997 adoption of the Kyoto Protocol to the United Nations 

Framework Convention on Climate Change (“UNFCCC”),
124

 which set 

binding obligations on industrialized country signatories to reduce 

greenhouse gas emissions.
125

  Because patenting activity is a common 

proxy for innovation rates,
126

 we can infer that 1997 was an important 

turning point in green technology innovation, arguably setting the table 

for the clean tech revolution we know today. 

The Kyoto Protocol further points to one of the critical factors that 

gave rise to the current clean tech industry:  concern about climate 

change and mobilization of the international community to address the 

problem.  The diplomatic efforts on climate change occurred in the 

broader context of pressing environmental issues that the world could no 

 

come on screen, the effect is jolting and chilling.”); see also Jenna Coriddi, An Inconvenient Truth, 

POL’Y & PRAC.:  A DEV. EDUC. REV., Education for Sustainable Development, Spring 2008, at 104, 

106, available at http://www.developmenteducationreview.com/issue6-reviews2 (“An Inconvenient 

Truth has played a significant role in raising public awareness of climate change to a new level and 

has been a significant educational tool in upper post-primary schools and at third level.”). 

121. See UNITED NATIONS ENV’T PROGRAMME ET. AL., PATENTS AND CLEAN ENERGY:  

BRIDGING THE GAP BETWEEN EVIDENCE AND POLICY FINAL REPORT 28–29 (2010), available at 

http://www.epo.org/news-issues/issues/clean-energy/patents-clean-energy/study-1.html. 

122. See id.  

123. See id. at 9. 

124. See id. (“[A]dequate frameworks are important for stimulating the development of CETs.”). 

125. See Kyoto Protocol, UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE CHANGE, 

http://unfccc.int/kyoto_protocol/items/2830.php (last visited Apr. 30, 2013) (“The Kyoto Protocol is 

an international agreement linked to the United Nations Framework Convention on Climate Change, 

which commits its Parties by setting internationally binding emission reduction targets.”) (emphasis 

in original). 

126. See, e.g., Clean Energy Patent Growth Index (CEPGI) 2011 Year in Review, CLEAN 

ENERGY PATENT GROWTH INDEX (Apr. 5, 2012), http://cepgi.typepad.com/heslin_rothenberg_farley 

_/2012/04/clean-energy-patent-growth-index-2011-year-in-review.html (“The granting of patents by 

the United States Patent and Trademark Office (PTO) is often cited as a measure of the inventive 

activity and evidence of the effectiveness of research & development investments.”).  



 

2013] Greenwashing 2.0 299 

longer ignore by the 1990s.
127

  Climate change was significant, and water 

shortages, deforestation, and air pollution were also important.
128

  These 

environmental concerns, in turn, were part of a confluence of trends—

such as electricity shortages,
129

 technological advances,
130

 and global 

shifts in corporate culture and consumer demand
131

—that together 

formed the fertile ground for the seeds of the modern clean tech 

industry.
132

 

Fortunately, shrewd executives at industrial and energy incumbents, 

along with forward-thinking entrepreneurs, saw the new business 

opportunities and jumped in.  What followed was major investment in 

research and development and substantial growth in various clean tech 

markets.  Venture capital (“VC”) investment in the clean tech industry in 

the United States grew from $458 million in 2001 to almost $6.6 billion 

in 2011.
133

  The latter sum represented 23.1% of the total VC investment 

in 2011, the largest ever percentage of VC activity in clean tech.
134

  

Significantly, the ten-year growth from 1.2% up to almost a quarter of 

total VC activity made clean tech the fastest growing venture category in 

the U.S. during the decade.
135

  Globally, new investment in sustainable 

energy totaled $162 billion in 2009.
136

 

 

127. See JOEL MAKOWER & RON PERNICK, CLEAN TECH:  PROFITS AND POTENTIAL 3 (2001) 

(“The concern over climate change in particular has led to new focus in alternative transportation 

and energy technologies.”). 

128. Id. 

129. Id. (“Energy uncertainty, exemplified by electricity shortages in California, has increased 

demand for ‘distributed generation,’ technologies such as microturbines, wind turbines, and solar 

photovoltaics, which enable electricity to be generated at or near where it is needed, rather than 

being shipped hundreds of miles over power lines.”). 

130. Id. (“Technological advances, including continued innovations in microelectronics, biology, 

chemistry, and physics, have significantly improved the performance of many clean technologies.”). 

131. Id. (“The sustainable development imperative, which aims to balance environmental, 

economic, and social interests as a means of addressing the needs of the world’s citizens, has 

increased the demand for clean, affordable, and resource-efficient technologies in the newly open 

markets of China, India, Latin America, Africa, and Eastern Europe.”). 

132. Id.  

133. See RON PERNICK ET AL., CLEAN ENERGY TRENDS 2012, at 5 (2012), available at http://ww 

w.cleanedge.com/reports/reports-profits.php (follow ‘download’ link for Clean Energy Trends 2012)  

(providing a chart showing the sum total of investment for 2001 at $458 million and investment for 

2011 at $6576 million). 

134. Id. at 6 (“Last year’s $6.6 billion, while slightly below 2008’s record-breaking $6.9 billion 

total, represented clean tech’s largest percentage of VC activity in the U.S. ever recorded, clocking 

in at 23.1 percent.”). 

135. Id.  

136. See UNITED NATIONS ENV’T PROGRAMME, GLOBAL TRENDS IN SUSTAINABLE ENERGY 

INVESTMENT 10 (2010), available at http://sefi.unep.org/fileadmin/media/sefi/docs/publications/UN 

EP_GTR_2010.pdf.  



 

300 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

Clean tech innovation and market growth followed the remarkable 

investment activity.  The number of U.S. patents directed to green 

technologies grew moderately but steadily starting in 2002 and began to 

spike around 2008.
137

  By the end of the decade, annual figures for green 

technology patents almost consistently set new highs, with 1881 patents 

granted in 2010
138

 and 2331 granted in 2011.
139

  Moreover, 2010 and 

2011 saw the first and second highest annual growth rates, respectively, 

of granted green technology patents, with an approximately 70% year 

over year increase in 2010 and a 24% jump in 2011.
140

  Wind power 

went from a $4 billion industry in 2000 to a $71.5 billion one in 2011.
141

  

The solar photovoltaics market saw exponential growth from $2.5 billion 

in 2000 to $91.6 billion in 2011.
142

  The biofuels market also expanded 

during this period, from $15.7 billion in 2005 to $83 billion in 2011.
143

 

B.  The Large and Complex Web of Commercialized Clean Tech 

Now that we are in the midst of the first sustained clean tech boom, 

there is greatly increased commerce in green technologies, often 

involving larger scale goods, particularly clean tech industrial and power 

generation products such as wind turbines, solar panels, biofuels, and 

 

137. See Clean Energy Patent Growth Index (CEPGI) 2010 Year in Review, CLEAN ENERGY 

PATENT GROWTH INDEX (Mar. 24 2011), http://cepgi.typepad.com/heslin_rothenberg_farley_/2011/ 

03/clean-energy-patent-growth-index-2010-year-in-review.html (“This compares to a 31 percent 

increase generally for all patents from 2009 to 2010 – which was the best showing ever for patents 

generally.”). 

138. See id. 

139. See Clean Energy Patent Growth Index (CEPGI) 2011 Year in Review, supra note 126 

(“U.S. patents for clean energy technologies in 2011 were at an all time high of 2331, jumping 450 

patents, or 24 percent, over 2010, which is the second largest year-to-year jump, lagging only the 

previous year-to-year jump of 756 patents.”). 

140. See Clean Energy Patent Growth Index (CEPGI) 2010 Year in Review, supra note 137 

(“U.S. patents for clean-energy technologies in 2010 were at an all time high, up a remarkable 756 

patents (almost 170 percent) over 2009 with a value of 1881.  This is the largest year to year jump 

since we began tracking clean energy patents by over three times the previous year to year 

difference.”).  

141. See MAKOWER & PERNICK, supra note 126, at 1; see PERNICK ET AL., supra note 132, at 3 

(“Wind power (new installation capital costs) is projected to expand from $71.5 billion in 2011, up 

from $60.5 billion the prior year, to $116.3 billion in 2021.”). 

142. See MAKOWER & PERNICK, supra note 127, at 1; PERNICK ET AL., supra note 133, at 4. 

143. See JOEL MAKOWER ET AL., CLEAN ENERGY TRENDS 2006, at 3 (2006), available at 

http://www.cleanedge.com/reports/reports-profits.php (follow ‘download’ link for Clean Energy 

Trends 2006) (“According to Clean Edge research, biofuels (global manufacturing and wholesale 

pricing of ethanol and biodiesel) will grow from $15.7 billion in 2005 to $52.5 billion by 2015.”); 

PERNICK ET AL., supra note 133, at 3 (“Biofuels (global production and wholesale pricing of ethanol 

and biodiesel) reached $83 billion in 2011 . . . .”). 



 

2013] Greenwashing 2.0 301 

cogeneration (combined heat and power) equipment.
144

  The steep and 

steady growth in these clean tech market sectors means that many green 

technologies are now being bought, sold, installed, and operated in large 

volumes.
145

  In addition to the industrial goods on the market, there are 

numerous related clean tech industry services such as technical 

consulting, compliance, and research.
146

 

In 2011, global wind power installations reached their largest ever total 

at 41.6 gigawatts (“GW”), with the top five wind markets spread across 

the globe in China (eighteen GW), Europe (ten GW), the United States 

(seven GW), India (three GW), and Canada (1.3 GW).
147

  The 2012 

numbers were even higher, with 44.7 GW of new wind power 

installations, with both China and the United States adding more than 

thirteen GW and Europe adding 12.4 GW.
148

  That marked an annual 

record for new U.S. wind installations.
149

  Solar photovoltaics have 

significant installed capacity as well, totaling over twenty-six GW 

worldwide in 2011.
150

  27.9 billion gallons of ethanol and biodiesel were 

also produced that year.
151

 

 

144. See MAKOWER & PERNICK, supra note 127, at 1 (Clean Energy’s High Voltage Growth 

2000–2010 chart showing wind power market valued at $4 billion in the year 2000); PERNICK ET 

AL., supra note 133, at 3 (stating the new wind power installation capital costs reached $71.5 billion 

in 2011, up from $60.5 billion the prior year); MAKOWER & PERNICK, supra note 127, at 1 (Clean 

Energy’s High Voltage Growth 2000–2010 chart showing solar photovoltaics market valued at $2.5 

billion in the year 2000); PERNICK ET AL., supra note 133, at 4 (stating that the solar photovoltaics 

market (including modules, system components, and installation) hit a record $91.6 billion in 2011). 

145. See MAKOWER & PERNICK, supra note 127, at 1; see also PERNICK ET AL., supra note 133, 

at 3-4.  

146. See, e.g., European Wind Energy Association Members Directory, EUR. WIND ENERGY 

ASS’N, http://www.ewea.org/membership/members-directory/ (last visited Apr. 2, 2013) (listing 285 

consultancies including computer software and communications; electrical; environmental impact 

assessment; health and safety; market and business analysis; wind forecast and resource assessment; 

and others). 

147. See PERNICK ET AL., supra note 133, at 3. 

148. See RON PERNICK ET AL., CLEAN ENERGY TRENDS 2013, at 3 (2013), available at http://ww 

w.cleanedge.com/reports/reports-profits.php (follow ‘download’ link for Clean Energy Trends 

2013). 

149. See Jeffrey Ryser, US Wind Installations Could Top 12,000 MW in 2012:  EIA, PLATTS 

(Dec. 19, 2012, 5:22 PM), http://www.platts.com/RSSFeedDetailedNews/RSSFeed/ElectricPower/6 

932947 (“A level of 12,000 MW of new installations would be an annual record, and would push 

total installed wind power generation capacity above 58,000 MW.”). 

150. PERNICK ET AL., supra note 133, at 4 (“While total [solar photovoltaics] market revenues 

were up 29 percent, installations climbed more than 69 percent from 15.6 GW in 2010 to more than 

26 GW worldwide last year.”). 

151. Id. at 3. 



 

302 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

To move these green technologies from factory to field often requires 

complex transactions and multiple skilled players along the way.
152

  

Green technologies, particularly those that generate renewable energy, 

need major manufacturers to build them, skilled installers and operators 

to deploy and operate them, well-funded project developers to finance 

the facilities that use them (such as wind farms and solar plants), and 

utilities to purchase and distribute the energy generated by them.
153

  

Therefore, in clean tech today, much of the commerce is business-to-

business as clean tech companies and green brand owners market and 

sell power generation and energy efficiency equipment to other 

companies such as installers, developers, and utilities.
154

 

The wind industry, for example, includes wind turbine manufacturers 

that design and manufacture turbines, wind farm developers that develop 

and sometimes own and operate wind farms, construction companies that 

build wind farms, finance companies that provide loans to wind farm 

developers and manufacturers, managing owners responsible for 

operation, maintenance and administration of wind farms, and various 

consultancies and research organizations that provide technical due 

diligence, wind resource assessments, and forecasting to the other 

industry players.
155

  On the whole, clean tech comprises a complex 

commercial ecosystem, with commercial “consumers” situated at various 

points along the development, supply, and operations chain.
156

 

Moreover, the large investments required for research and 

development of clean tech products and projects mean that each player in 

the chain has substantial capital at stake.
157

  Commercialization costs for 

successful renewable energy facilities, particularly for large-scale 

projects, are extremely high due to the complex equipment and 

 

152. See Community Wind Toolbox:  Chapter 2:  Development Overview and Checklist, 

WINDUSTRY, http://www.windustry.org/community-wind/toolbox/chapter-2-development-overview-

and-checklist (last visited Apr. 23, 2013) (discussing the roles of wind manufacturers, developers, 

consultants, contractors, utilities and noting that “[c]ommunity wind project development requires 

many steps and involves many diverse people and organizations . . . Much of the necessary work 

will require hiring experienced consultants and lawyers, such as for site assessment, interconnection 

studies, and developing easements.”). 

153. See id. 

154. See infra Part III.B (discussing cases involving B-to-B clean tech marketing and sales). 

155. See Community Wind Toolbox:  Chapter 2:  Development Overview and Checklist, supra 

note 152.  

156. See id. 

157. See, e.g., Joel Makower, Financing Our Cleantech Future, GREENBIZ.COM (Jan. 28, 2010), 

http://www.greenbiz.com/blog/2010/01/18/financing-our-cleantech-future (providing the case study 

of BrightSource Energy). 



 

2013] Greenwashing 2.0 303 

infrastructure required.
158

  A wind farm typically costs hundreds of 

millions of dollars, and a utility-scale solar thermal plant can cost $2–3 

billion.
159

  In one recent high profile deal, MidAmerican Renewables 

paid between $2.0 and $2.5 billion for a 579 megawatt (“MW”) solar 

project set to begin construction in 2013.
160

  With a number of sectors of 

the clean tech industry now reaching maturity, clean tech firms are 

becoming the key players in the new area of commercial consumer 

greenwashing. 

III.  THE NEW GREENWASHING PARADIGM 

This Part proposes a new greenwashing paradigm.  It explains how 

like the B-to-C advertisers of consumer products before them, green 

commercial players utilize environmental marketing and make 

representations about environmental benefits of their green technology 

goods and services to their business consumers.
161

  It is this form of B-to-

B environmental marketing that drives the new cases.
162

  This Part 

surveys three new categories of commercial consumer greenwashing 

cases:  breach of contract or breach of warranty suits involving energy 

generation equipment and projects,
163

 trademark infringement actions 

regarding branded green technology equipment,
164

 and fraud cases in 

connection with renewable energy credits.
165

 

A.  Introducing the New Paradigm 

In light of the high stakes of clean tech commercialization, the players 

involved are using everything in their arsenals to achieve their strategic 

business goals.  One of the available tools is marketing.  It is becoming 

clear that some clean tech commercial players are increasingly tempted 

to make false, misleading, deceptive, or inflated claims about the 

environmental benefits of their products and projects.
166

  Moreover, the 

B-to-B marketing of green commercial products and services in the clean 

 

158. See id.  

159. Id. 

160. See Eric Wesoff, SunPower’s 579 MW Solar Project Sold to MidAmerican, GREENTECH 

MEDIA (Jan. 2, 2013), http://www.greentechmedia.com/articles/read/SunPowers-579-MW-Solar-

Project-Sold-to-MidAmerican. 

161. See infra Part III.B. 

162. See infra Parts III.A–B. 

163. See infra Part III.B. 

164. See infra Part III.C. 

165. See infra Part III.D. 

166. See infra Parts III.B–D. 



 

304 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

tech industry renders each commercial “consumer” in the supply chain 

vulnerable to greenwashing.
167

  To make matters worse, large clean tech 

deals such as solar projects can involve multiple transaction documents 

so that not every player is a party to each transaction, which makes these 

project deals ripe for disputes.
168

  This is the context that has given rise to 

the new paradigm:  Greenwashing 2.0. 

The new greenwashing paradigm looks beyond those environmental 

marketing claims about consumer products directed at individuals, which 

formed the basis of nearly all greenwashing cases in the 1970s, 80s, and 

90s,
169

 to encompass representations made in connection with the sale of 

industrial green technology equipment and services to commercial 

consumers.
170

  The definition of the term “greenwashing” need not 

change to accommodate the new paradigm.  In fact, as discussed below, 

the claims and activities at issue in the new paradigm cases tend to fall 

squarely within the conventional definition of the term—false or 

misleading claims about the purported environmental benefits of a 

product, service, or business practice.
171

 

By expanding the context in which we recognize environmental 

marketing claims as potential greenwashing, the new paradigm enables a 

more complete understanding of the scope and impact of the 

greenwashing problem by taking into account the new commercial 

reality of the clean tech revolution.  When we acknowledge B-to-B 

commerce among clean tech companies and green brand owners 

involving renewable energy generation and energy efficiency equipment, 

many new and significant greenwashing cases come to light.
172

  Thus, as 

part of the new paradigm, greenwashing cases are brought by or on 

behalf of green commercial consumers and involve, for example, 

allegations of false wind farm resource estimates, faulty cogeneration 

power units, counterfeit solar panels, and trademark infringement in 

connection with LED lighting, environmental compliance software, and 

wind and solar manufacturing.
173

 

 

167. See id. 

168. See Roger C. Haerr, Who Pays When Solar Modules Fail?, MARTINDALE.COM (Dec. 9, 

2010), http://www.martindale.com/energy-law/article_Luce-Forward-Hamilton-Scripps-LLP_12015 

76.htm (“When a component fails, parties often turn to the transaction documents to see who is 

responsible.  Of course, not every party in a transaction is itself a party to each such document, so 

different players will look in different places.”).  

169. See supra Parts I.B–C. 

170. See infra Parts III.B–D. 

171. See id. 

172. See id. 

173. See id. 



 

2013] Greenwashing 2.0 305 

B.  Breach of Contract and Breach of Warranty Cases 

Under the new paradigm, greenwashing cases include breach of 

contract claims in which a manufacturer or another commercial player in 

the clean tech industry misrepresents the resources or capacity of a 

project site or inflates the efficiency or production capability of power 

generation equipment.
174

  Such cases are brought by the green 

commercial consumers that purchase faulty equipment or otherwise enter 

into business deals with the company that made the allegedly deceptive 

statements.
175

  In these instances, the alleged misrepresentations fit 

squarely within the traditional definition of greenwashing, and the 

potential damage to the commercial “consumer” and the environment is 

significant.
176

  This risk arises because the statements at issue relate to 

wind farm projects, and products such as wind turbines and cogeneration 

units, whose sole purpose is to harness renewable energy or efficiently 

generate power.
177

 

1.  DeWind v. Glenmore Wind Farm 

Given the size of the wind industry today, the multiple players in the 

supply chain, and the high costs involved, it may not be a surprise to see 

greenwashing in connection with wind farms.  One example of B-to-B 

greenwashing in the wind industry involves DeWind Company 

(“DeWind”), a vertically integrated global wind company based in 

Germany and southern California.
178

  Owned by Daewoo, DeWind 

includes DeWind Energy Development LLC, which is in the business of 

wind farm project development.
179

  While developing one project, 

DeWind ran into the new form of greenwashing.
180

 

 

174. See, e.g., Complaint, DeWind Co. v. Glenmore Wind Farm, LLC, No. SACV12-00392 JVS 

(RNBx) (C.D. Cal. Oct. 31, 2012), 2012 WL 1577459 (dismissed with prejudice) (involving 

allegations that defendants misrepresented a wind project’s wind resource estimate). 

175. See, e.g., Complaint, Kumeyaay Wind LLC v. Gamesa Wind US LLC, No. 3:11-cv-02425-

JM-BGS (S.D. Cal. Oct. 18, 2011) (involving allegations that defendant’s misrepresented the 

minimum availability of wind turbines).  

176. See infra Parts III.B.1–B.2, III.C.1–C.2 (discussing the rationale for classifying particular 

new paradigm cases as greenwashing). 

177. See infra Parts III.B.2–B.3.  

178. See About DeWind, DEWIND CO., http://www.dewindco.com/eng/dewind/about.asp (last 

visited Apr. 30, 2013). 

179. See Affiliates, DEWIND CO., http://www.dewindco.com/eng/business/affiliates.asp (last 

visited Apr. 30, 2013).  

180. See Complaint, supra note 175, ¶ 15 (“Pursuant to the terms of the Agreement, Plaintiff 

paid $250,000 (the ‘Fee’) to Defendants in consideration for the exclusive right to purchase or sell 

Defendants’ interests in its 14 megawatt wind farm project (the ‘Project’) during the term of the 



 

306 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

In 2009, DeWind entered into an agreement with Glenmore Wind 

Farm, turbine maker Urban Power, and project developer Prelude, 

through which it agreed to pay $250,000 for the exclusive right to 

purchase or sell the other parties’ interests in a fourteen MW wind farm 

project.
181

  DeWind did not find any buyers for the project and sued 

Glenmore, Urban, and Prelude for breach of contract.
182

  According to 

the complaint, DeWind’s inability to close a sale of the project was due 

to misrepresentations the defendants made about the project’s wind 

resource estimate and the defendants’ failure to complete additional 

development work required by the agreement.
183

 

Specifically, DeWind alleged that prior to the agreement defendants 

stated that the net capacity factor
184

 of the project site was 31.8% while 

the wind resource estimate
185

 report defendants provided after execution 

of the agreement put the number at 25.8%.
186

  This difference in net 

capacity factor made the project uneconomical, DeWind alleged, and 

proved to be a “decisive cause” of DeWind’s inability to sell the 

project.
187

   

This would not typically be viewed as a greenwashing case because 

DeWind is not an individual consumer and a wind farm project is not a 

consumer product.  Rather, with a green commercial consumer in 

DeWind accusing other commercial players of making false or 

misleading representations in connection with the sale of a clean tech 

 

Agreement.”); id. ¶ 18 (“Defendants misrepresented the Project’s wind resource estimate by 

representing that the project site contained a higher forecasted capacity factor than it actually did.”).  

181. Id. ¶¶ 13–15. 

182. Id. ¶ 16 (“Under the Agreement, Plaintiff was required to find buyers for the Project or buy 

the Project itself, and close a sale of the Project (a ‘Transaction’) within 120 days of the Effective 

Date (the ‘Term’).  The Term expired on March 26, 2010.”). 

183. Id. ¶ 19 (“Defendants’ misrepresentations regarding the wind resources of the project 

violated Section 2(d) of the Agreement.”). 

184. The capacity factor of a project site is the ratio of energy actually produced to the maximum 

possible energy production.  See, e.g., Charles Vaughan, Clipper Windpower:  The Economics of 

Wind Energy, INDUS. WIND ACTION GROUP, http://www.windaction.org/documents/3965 (last 

visited Feb. 26, 2013) (“[T]here are substantial deductions which need to be included in order to 

accurately estimate a windplant’s capacity factor, with the Net Capacity Factor of a windplant being 

on average about 86% of the Gross Capacity Factor.”).   

185. A wind resource estimate or assessment provides information about the wind energy 

potential of a geographic site or area.  See, e.g., Wind Program Resource Assessment & 

Characterization, DEP’T OF ENERGY, http://www1.eere.energy.gov/wind/resource_assessment_chara 

cterization.html (last updated May 30, 2012) (“A technical wind resource assessment completed by 

the Wind Program in 2009 estimated that the land-based wind energy potential for the contiguous 

United States is 10,500 GW capacity at 80-m and 12,000 GW capacity at 100 m heights, assuming a 

capacity factor of at least 30%.”). 

186. Complaint, supra note 174, ¶ 18. 

187. Id. ¶¶ 18–19.  



 

2013] Greenwashing 2.0 307 

project, it can be viewed as greenwashing only under the new paradigm 

proposed here.  The representations at issue, if false or deceptive, would 

comport with the common definition of greenwashing because they are 

statements about the environmental benefits of a product or service, 

specifically false wind resource estimates.
188

  More particularly, an 

inflated net capacity factor for a wind farm project site misrepresents the 

clean energy production capability of installed wind turbines at the 

site.
189

  Thus, such false numbers go directly to the green benefits of a 

project developed for the sole purpose of generating renewable energy. 

More importantly, this type of greenwashing in connection with major 

renewable energy facilities could have a significant adverse impact on 

efforts to curb climate change.
190

  As the facts of the DeWind case 

suggest, false claims about the capacity of a project site can kill a wind 

farm project by preventing its sale to an operator that would keep the 

wind farm online generating renewable energy.  Indeed, the Glenmore 

wind farm was decommissioned in 2012, though it is not certain that the 

alleged greenwashing was the decisive factor in its demise.
191

  

Alternatively, such misrepresentations could lead to misinformed 

investment in a particular project, which might otherwise have been 

directed to a more viable renewable energy generation facility.  If true, 

not only would the allegations of inflating net capacity factor for a 

wind farm be greenwashing, but DeWind’s anti-greenwashing legal 

action would be at least equally, if not more, important than many of the 

cases involving false or misleading claims brought by or on behalf of 

individual consumers.
192

 

2.  Kumeyaay v. Gamesa 

Similarly, in Kumeyaay Wind v. Gamesa,
193

 Kumeyaay, the owner and 

operator of the Kumeyaay wind farm in southern California, sued 

Gamesa, over the wind turbine manufacturer’s false assertions regarding 

 

188. See supra notes 184–85. 

189. See Vaughan, supra note 184. 

190. See Glenmore Wind Energy Facility, WIS. PUB. SERVICE, http://www.glenmorewind.com/ 

(last visited March 23, 2013) (noting that the Glenmore Wind Project will be decommissioned in 

September 2012).  Other renewable energy projects subject to greenwashing could be similarly taken 

off line or divert resources from more viable projects, resulting in losses of clean energy production 

on a gigawatt or megawatt scale.  

191. Id.  

192. See supra note 190. 

193. See Complaint, supra note 175, ¶ 1. 



 

308 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

the performance of its turbines.
194

  In 2005, Kumeyaay entered into 

agreements with Gamesa by which the Spanish wind turbine maker 

would supply twenty-five 2.0 MW turbines for use at the wind farm and 

would operate and maintain the turbines.
195

  According to the complaint, 

Gamesa represented that each turbine would have a minimum 

availability of 95%, and the wind farm as a whole would have a 

minimum availability of 97%.
196

 

In 2011, Kumeyaay sued Gamesa for breach of the availability 

warranty and other warranties.
197

  According to the complaint, the wind 

farm’s availability fell below the minimum warranted thresholds, and 

Gamesa therefore owes Kumeyaay liquidated damages for significant 

periods of time when the turbines were not functioning after strong 

winds experienced during a winter storm.
198

  Kumeyaay also alleged that 

a number of the turbines experienced blade failures, and although 

Gamesa replaced the blades, it improperly demanded that Kumeyaay pay 

the replacement costs.
199

 

As in the DeWind case, this lawsuit pits a green commercial consumer 

(wind farm owner Kumeyaay) against another industry player in the 

context of an allegedly underperforming wind farm.  In this instance, the 

environmental marketing claims at issue relate to wind turbine 

performance,
200

 as well as quality problems with the turbine blades.
201

  

The warranties involved may have oversold the green capabilities of the 

turbines by hiding deficiencies that undermined the products’ minimum 

 

194. Id. ¶ 10 (“Kumeyaay owns a wind-powered electric generating facility located 

approximately 70 miles east of San Diego, in Boulevard, California, known as the Kumeyaay Wind 

Farm (the ‘Wind Farm’).”). 

195. Id. ¶¶ 11–14. 

196. Id. ¶ 24. 

197. Id. ¶¶ 109–35. 

198. Id. ¶¶ 43, 55 (“Gamesa owes Kumeyaay liquidated damages in the amount of $3,535,209 

due to significant periods of downtime (i.e., periods where the Turbines were not functioning) 

related to the Event during which the Wind Farm’s availability fell below the minimum thresholds 

set forth in the TSA’s Availability Warranty.”). 

199. Id. ¶¶ 51–53 (“Gamesa has refused to recognize that it is solely responsible for these 

replacement costs as well as liquidated damages payable to Kumeyaay under the TSA for lost energy 

production.  In fact, Gamesa now contends that Kumeyyay owes it $31,861,863.25 for replacing the 

blades with LM blades.”). 

200. See id. ¶ 55. 

201. See id. ¶¶ 35, 38 (“After commencement of operations in January 2006, the Wind Farm 

suffered nineteen blade failures . . . .  By the summer of 2009, eleven additional failures had 

occurred at the Wind Farm.”). 



 

2013] Greenwashing 2.0 309 

availability, and therefore, their clean energy generation capacity.
202

  

Moreover, the Kumeyaay wind farm was one of the first U.S. sites to use 

this model of Gamesa turbine, such that the manufacturer’s warranties 

were particularly important to Kumeyaay’s decision to purchase the new 

technology for the project.
203

  If Kumeyaay’s allegations are true, 

Gamesa’s misrepresentations constitute greenwashing, namely, they 

inflate the performance of renewable energy generation products, and the 

harm in loss of power output is potentially very significant. 

The broader context driving construction and operation of renewable 

energy facilities such as wind farms and solar power plants further 

illustrates the impact of the new paradigm cases like those DeWind and 

Kumeyaay are involved in.  Often utilities or other off-takers purchasing 

electricity need clean power generated by wind farms and solar power 

plants to satisfy their obligations under state renewable portfolio 

standards (“RPS”).
204

  Here, the Kumeyaay wind farm has been helping 

San Diego Gas & Electric meet its renewable energy targets.
205

  In 

instances of underproducing sites or underperforming turbines, as alleged 

in these cases, off-takers could fall short of their goals of providing 

certain amounts of power from renewables.  Thus, both the off-takers’ 

needs or desires to provide clean energy and the RPS policy goals are 

frustrated by new paradigm greenwashers. 

3.  D.G. Cogen Partners v. Hess Microgen 

A similar dispute over false or misleading representations regarding 

power generation equipment centered on cogeneration units.  

Cogeneration technology, also known as combined heat and power 

(“CHP”), uses fuel (usually natural gas) to produce electricity and, unlike 

traditional power systems, recycles and uses the heat released in the 

 

202. See id. ¶¶ 24, 55 (“Under the Availability Warranty, Gamesa warranted that each Turbine 

would have a minimum availability of 95% and the Wind Farm as a whole would have a minimum 

availability of 97% . . . .”). 

203. Id. ¶ 16. 

204. See, e.g., State RPS’ Lead to 250% Market Growth by 2025, RENEWABLEENERGYWORLD.C 

OM (July 2, 2010), http://www.renewableenergyworld.com/rea/news/article/2010/07/state-rps-lead-

to-250-market-growth-by-2025 (“As of June 2010, mandatory RPS policies, requiring states to 

procure a percentage of generation from renewable energy, have been passed in 31 US states and the 

District of Columbia, with six additional states approving conditional or non-mandatory renewables 

goals.”). 

205. See Kumeyaay Wind, CAMPO KUMEYAAY NATION, http://www.campo-nsn.gov/windfarm.h 

tml (last visited Apr. 4, 2013) (“The Kumeyaay Wind farm annually produces power sufficient for 

about 30,000 homes and saves approximately 110,000 tons a year in greenhouse gas emissions, 

compared with equivalent fossil fuel generation.”). 



 

310 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

process.
206

  In 2008, DG Cogen Partners, LLC (“Cogen”), a California-

based installer and operator of energy efficient power systems, sued Hess 

Microgen (“Hess”), for damages Cogen allegedly suffered due to a fleet 

of faulty cogeneration units, including the Hess Microgen 200 Packaged 

Cogeneration System (“Microgen 200”).
207

 

In 2004, Cogen purchased a fleet of Hess CHP units, including 

Microgen 200 units, from a third party, becoming the assignee of the 

third party’s purchase agreement with Hess.
208

  In its complaint, Cogen 

alleged that, prior to and at the time of its purchase, Hess failed to 

disclose flaws in the CHP units and misrepresented the capabilities of the 

products through statements, technical documents, and advertising.
209

  In 

particular, Cogen alleged that Hess represented that the units contained 

“rich burn” engines that generated high thermal output when the engines 

were actually “lean burn,” which provide lower output and require more 

steps to meet regulatory compliance.
210

  The complaint further alleged 

that the units subsequently failed completely or did not generate 

electricity at the rated capacity.
211

  

Misrepresenting lower thermal output “lean burn” engines as high 

output “rich burn” models would constitute greenwashing if those 

products were marketed to individual consumers, and should also be 

considered greenwashing when, as here, the units are marketed to 

commercial consumers.  The efficiency and thermal output of the 

cogeneration units are the very aspects that make them green because 

these features provide power in a cleaner fashion than conventional units.  

Here, Cogen, a company focused on environmentally friendly power 

 

206. See, e.g., Cogeneration—Combined Heat and Power, GEN. ELECTRIC COMPANY, http://ww 

w.ge-energy.com/solutions/cogeneration_of_heat_and_power.jsp (last visited Apr. 23, 2013). 

207. See Complaint ¶¶ 20–21, 32, 37, 44, DG Cogen Partners v. Hess Microgen, LLC, 4:08-cv-

03249-SBA (N.D. Cal. July 3, 2008) [hereinafter Cogen Complaint]. 

208. Id. ¶ 19 (“On or about July 23, 2004 . . . DG Cogen entered into a written agreement with 

RealEnergy, whereby DG Cogen purchased the Hess cogeneration systems and other assets, 

including an assignment of customer leases”). 

209. Id. ¶¶ 14, 16 (“On information and belief, Hess made numerous representations to 

RealEnergy to induce RealEnergy to enter into the Hess-RealEnergy Contract, including that the 

systems were ‘rich burn’ (requiring less steps than ‘lean burn’ to meet regulatory compliance) and 

have an output of at least 192 kWH on natural gas . . . .  Further, on information and belief, Hess 

sold the cogeneration systems to RealEnergy with numerous defects . . . .  Hess also provided 

assurances to DG Cogen that the units would operate and run at the technical specifications set forth 

in the Hess information and promotional materials for the units . . .”). 

210. Id. ¶ 14. 

211. Id. ¶ 20 (“Among other things, the units failed to generate electricity at or near the rated 

capacity of at least 192kWH and the system controls were failing.”). 



 

2013] Greenwashing 2.0 311 

production,
212

 relied on Hess’s assurances that the units would operate to 

specification and its representations about thermal output levels in its 

decision to take over the contract for the equipment.
213

 

Moreover, the energy wasted by misleading operators like Cogen into 

purchasing and operating less efficient CHP units is potentially quite 

large and damaging to the environment.  By some estimates, if the 

energy lost in the form of waste heat were harnessed it could provide 

one-fifth of the energy needs of the United States.
214

  Energy efficiency 

technology, particularly recycling waste heat by cogeneration, is too 

important to be compromised by false claims and faulty equipment, and 

it is this environmental context that compels recognition of Cogen’s 

lawsuit as a greenwashing case. 

C.  New Paradigm Eco-mark Infringement Cases 

A second category of situations that constitute greenwashing under the 

new paradigm is trademark infringement where the marks at issue are 

owned by manufacturers of clean tech products such as wind turbines, 

solar panels, and materials for solar cell manufacturing.
215

  Centering on 

“eco-marks”—trademarks and service marks used in connection with 

green goods and environmental services—these actions are brought by 

green brand owners on behalf of their green commercial consumers.
216

  

Traditionally, such instances of eco-mark infringement involving 

industrial clean tech equipment would not be on the radar of 

commentators or policymakers, let alone be considered greenwashing 

cases by those actually focused on the issue.
217

  However, trading on an 

 

212. See id. ¶ 1 (“DG Cogen is in the business of providing environmentally-friendly energy 

solutions, including through installing and operating cogeneration systems.”). 

213. Id. ¶¶ 17, 19 (“DG Cogen and Hess jointly visited numerous sites in California where the 

units had been installed, and Hess separately visited a number of California sites, so that Hess could 

provide assurances to customers that the units DG Cogen planned to purchase would operate to 

specification.”). 

214. See Lisa Margonelli, Waste Not:  A Steamy Solution to Global Warming, ATLANTIC 

MONTHLY (May 1, 2008), http://www.theatlantic.com/magazine/archive/2008/05/waste-not/306757/ 

(“A 2005 report by the Lawrence Berkeley National Laboratory found that U.S. industry could 

profitably recycle enough waste energy—including steam, furnace gases, heat, and pressure—to 

reduce the country’s fossil-fuel use (and greenhouse-gas emissions) by nearly a fifth.”). 

215. See infra Parts III.C.1–5 (discussing new paradigm trademark infringement lawsuits 

involving solar panels, wind turbines, chemicals for solar cell manufacturing, environmental 

compliance software, and LEDs). 

216. See, e.g., Press Release, Suntech, Suntech Granted Preliminary Injunctions Against 

Trademark Infringers (Feb. 6, 2009), available at http://ir.suntech-power.com/phoenix.zhtml?c=192 

654&p=irol-newsArticle&ID=1253039&highlight=. 

217. See infra Part IV.A (discussing the greenwashing blind spot). 

http://www.matternetwork.com/2008/4/wasted-heat-could-power-20.cfm
http://www.matternetwork.com/2008/4/wasted-heat-could-power-20.cfm


 

312 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

established clean tech company’s reputation for quality green technology 

products is a form of greenwashing as it conveys false or misleading 

information about the genuineness of the infringing articles by cloaking 

them in the established goodwill of the eco-mark owner.
218

  Moreover, to 

the extent the infringing products or services at issue in these cases are 

inferior in overall quality or energy output, the infringers’ acts constitute 

greenwashing on a highly damaging scale.
219

 

1.  Suntech Fights Eco-mark Outlaws 

Suntech Power Holdings (“Suntech”), a Chinese solar module 

manufacturer, is the world’s largest producer of photovoltaic modules.
220

  

Suntech owns U.S. trademark registrations for its SUNTECH design 

mark and for the SUNTECH word mark used in connection with other 

solar energy products.
221

  In August 2008, Suntech sued its competitor 

Shenzhen Xintian Solar Technology Co. and its subsidiary Sun Tech 

Solar (collectively “Sun Tech Solar”) in federal court in San Diego, 

California for alleged infringement of its SUNTECH trademarks.
222

 

According to the complaint, Sun Tech Solar’s infringing activity 

included use of the confusingly similar trademarks SUN TECH and SUN 

TECH SOLAR in connection with the sale of solar modules similar to 

Suntech’s products.
223

  At the time, Sun Tech Solar had immediate plans 

to exhibit and advertise using the allegedly infringing trademarks at the 

Solar Power Conference & Expo—perhaps the largest international solar 

power conference—in San Diego on October 13–16, 2008.
224

 

Suntech obtained legal relief when the Court granted Suntech’s motion 

for a preliminary injunction,
225

 ordering Sun Tech Solar to cease all use 

of the SUN TECH and SUN TECH SOLAR marks, as well as any other 

 

218. See infra Parts III.C.1–5 (discussing the rationale for thinking about new paradigm 

trademark infringement lawsuits as greenwashing). 

219. Id. 

220. About Suntech, SUNTECH, http://www.suntech-power.com/en/about/about-suntech (last 

visited Apr. 2, 2013).  

221. SUNTECH, Registration No. 3,111,705; SUNTECH, Registration No. 3,662,906. 

222. See Complaint ¶¶ 12, 15, Suntech Power Holdings Co. v. Shenzhen Xintian Solar Tech. 

Co., No. 3:08-cv-01582-H-NLS (S.D. Cal. Aug. 28, 2008) [hereinafter Suntech Complaint]; see also 

SUNTECH, Registration No. 3,662,906 (maturing from U.S. Trademark Application Serial No. 

77,559,361, filed August 29, 2008, one day after the complaint was filed).  The first use in 

commerce on the application in connection with solar photovoltaic modules was listed as July 2, 

2004.  Id.   

223. See Suntech Complaint, supra note 222, ¶ 15. 

224. See id. ¶¶ 18–20. 

225. Order Granting Plaintiffs’ Motion for Preliminary Injunction at 1–2, Suntech Power 

Holdings Co. v. Shenzhen Xintian Solar Tech. Co., 3:08-cv-01582-H-NLS (S.D. Cal. Oct. 6, 2008). 



 

2013] Greenwashing 2.0 313 

confusingly similar marks, in connection with solar modules in the 

U.S.
226

  The Court subsequently found Sun Tech Solar in civil contempt 

and ordered seizure of the infringing materials.
227

  The lawsuit ultimately 

resulted in a default judgment and a permanent injunction against Sun 

Tech Solar.
228

 

Suntech also took action against a solar module counterfeiter in 

Europe.
229

  In February 2009, the company announced that it had been 

granted preliminary injunctions against the nearly identical but unrelated 

Suntech Power Holding (Hongkong) Co., Limited and two 

distributors.
230

  The preliminary injunctions prohibited the Hong Kong 

company and its distributors from selling SUNTECH branded 

products.
231

 

Sun Tech’s actions in misrepresenting that its solar modules are the 

reputed genuine articles constitute greenwashing under the new 

paradigm.  Sun Tech was free-riding on Suntech’s established reputation 

as a major manufacturer of high quality green products.  The eco-mark 

infringement, a calculated passing off of Sun Tech’s solar modules as 

those of a well-known clean tech company, falsely cloaks the counterfeit 

articles in the established goodwill of the SUNTECH mark.  As such, the 

infringement conveys false or misleading information about the 

genuineness of those solar modules.  Though the damage may not be 

immediate and tangible, such free riding is, in effect, a false marketing 

message about green products, and therefore constitutes greenwashing. 

In enforcing its solar product trademarks, Suntech is acting on behalf 

of its green commercial consumers to protect them against the tangible 

harm that counterfeit articles could inflict.
232

  According to Suntech’s 

press release about the injunctions in Europe, the company is 

“determined to proactively protect our customers’ interests and the 

integrity of the Suntech brand.”
233

  Eco-mark infringement actions can 

therefore be considered anti-greenwashing enforcement actions with the 

brand owner acting to protect of its commercial consumers from the 

greenwashing activity of eco-mark infringers.  As is typical in 

 

226. Id. at 6–7. 

227. Id. 

228. Order Granting Plaintiff’s Motion for Default Judgment at 5–6, Suntech Power Holdings 

Co. v. Shenzhen Xintian Solar Tech. Co., No. 3:08-cv-01582-H-NLS (S.D. Cal. Jan. 29, 2009). 

229. Press Release, supra note 216. 

230. Id. 

231. Id. 

232. See id. 

233. Id. 



 

314 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

counterfeiting situations, the biggest concern from a consumer protection 

standpoint is the potential quality gap between the products of the known 

brand and the imitations.
234

  Dr. Zhengrong Shi, Suntech’s Chairman and 

CEO, emphasized the high quality and performance of his company’s 

products: 

 

Due to our stringent quality control programs, Suntech solar products offer 
industry leading power output guarantees and frequently exceed project 
performance targets.  They have also been utilized in many of the world’s 
largest and highest profile PV solar projects.

235
 

 

The salient concerns with counterfeit solar modules are that they will 

produce less renewable energy than the genuine articles or will not last as 

long.
236

  With solar modules, devices whose sole function is to harness 

and generate renewable energy, any such performance discrepancy 

would mean less of the intended green benefit.  In other words, infringers 

holding out counterfeit solar modules of inferior quality are engaged in 

greenwashing by, in effect, making false or misleading representations 

about the environmental benefits of these knockoff renewable energy 

products.  Thus, Suntech’s eco-mark enforcement actions in Germany 

and the United States are important anti-greenwashing measures that 

should prevent such problems by precluding sales of the knockoff 

modules going forward. 

2.  Nordic Battles an Ill Wind 

Another eco-mark case involved alleged free riding on a green brand 

owner’s reputation for quality renewable energy equipment.  In August 

of 2009, Nordic Windpower (“Nordic”), a wind turbine manufacturer 

based in Berkeley, California, sued Nordic Turbines, Inc. (“NTI”), a 

competing turbine manufacturing venture, alleging that NTI’s use of the 

term “Nordic” to market and sell wind turbines and raise capital for the 

manufacture of wind turbines infringed Nordic’s trademark 

registration.
237

  Nordic also asserted trade dress protection for a blue and 

 

234. ORG. FOR ECON. CO-OPERATION & DEV., THE ECONOMIC IMPACT OF COUNTERFEITING 

AND PIRACY 4 (1998), available at http://www.oecd.org/industry/ind/38707619.pdf (“The ultimate 

victims of unfair competition are the consumers.  They receive poor-quality goods at an excessive 

price and are sometimes exposed to health and safety dangers.”). 

235. Press Release, supra note 216. 

236. See ORG. FOR ECON. CO-OPERATION & DEV., supra note 234, at 4. 

237. See Complaint, Nordic Windpower USA, Inc. v. Nordic Turbines, Inc., 3:09-cv-03672-EDL 

(N.D. Cal. Aug. 11, 2009). 



 

2013] Greenwashing 2.0 315 

orange color scheme the company uses in its advertisements and 

promotional material.
238

  The complaint alleged that NTI was using an 

identical blue and orange color scheme.
239

 

The allegations in this action paint a disturbing picture for potential 

purchasers of Nordic Windpower’s turbines.  As in the Suntech dispute, 

the products are the same and the eco-marks at issue are effectively 

identical.
240

  Therefore, the likelihood of consumer confusion would 

likely be high, and commercial consumers such as wind farm developers 

and operators could end up with products materially different and 

inferior quality than the ones they intended to buy.
241

  Specifically, as 

discussed above, purchasers of renewable energy equipment and the 

power they generate are often motivated by the obligation or desire to 

provide clean energy.
242

  Should they receive inferior wind turbines or 

reduced power output, these purchasers might enjoy far less green 

benefit from their investment.  Because the sole function of a wind 

turbine is to generate electricity from a clean, renewable resource, the 

activity at issue in this case goes directly to the environmental benefit of 

the allegedly infringing product.  If problems arise with the quality or 

energy output of the allegedly infringing turbines sold by Nordic, this 

should be considered a greenwashing case under the new paradigm. 

3.  Voltaix v. NanoVoltaix 

In another eco-mark infringement case brought on behalf of green 

commercial consumers, Voltaix, LLC (“Voltaix”) sued NanoVoltaix, 

Inc. (“NanoVoltaix”) for infringement of two U.S. trademark 

registrations for the marks VOLTAIX and VOLTAIX, INC.
243

  Both 

registrations are for “chemicals used in the manufacture of 

semiconductors and photovoltaic devices.”
244

  Voltaix is a New Jersey 

company that manufactures chemicals for the semiconductor and solar 

 

238. See id. ¶¶ 58–59. 

239. Id. ¶ 63. 

240. See id. ¶¶ 41–48 (stating a claim for infringement of the NORDIC WINDPOWER mark by 

defendant’s use of “NORDIC” in its name); see also supra Part III.C.1 (noting that Sun Tech Solar’s 

infringing activity included use of the confusingly similar trademarks SUN TECH and SUN TECH 

SOLAR in connection with the sale of solar modules similar to Suntech’s products). 

241. See id. ¶¶ 70–71, 73 (stating that the sight, sound, and meaning of NORDIC, as compared to 

NORDIC WINDPOWER, would deceive the public and cause consumer confusion). 

242. See supra note 205 and accompanying text. 

243. See generally Complaint, Voltaix, LLC v. NanoVoltaix, Inc., No. 3:09-cv-00142-AET-JJH 

(D.N.J. Jan. 12, 2009). 

244. See VOLTAIX, INC., Registration No. 2,954,404; VOLTAIX, Registration No. 2,992,964. 



 

316 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

energy industries.
245

  As such, the green commercial consumers 

implicated by the alleged infringement are solar cell manufacturers that 

source their chemicals from Voltaix.  In the event that NanoVoltaix’s 

marketing misleads these manufacturers, they may purchase upstream 

solar products that they do not want and that do not work for their solar 

business.  In such situations, the solar cells produced using inappropriate 

or inferior chemicals could be inoperable or of lower quality, frustrating 

the efforts of downstream clean tech players to generate the desired 

amounts of solar energy.  The alleged trading off of Voltaix’s name and 

brand, therefore, could be damaging to the company and its customers 

and to the fight against climate change.
246

 

4.  Enviance’s Environmental Software Eco-mark 

From clean tech hardware we turn to environmental software, an 

emerging field that has been the subject of new paradigm eco-mark 

infringement suits.  Enviance produces and sells Environmental 

Enterprise Resource Planning (“ERP”) software and provides other 

environmental services.
247

  The ERP software enables Enviance’s clients 

to measure, manage, and report greenhouse gas (“GHG”) emissions as 

well as other environmental health and safety data in order to mitigate 

their environmental impact.
248

  

In June 2009, Enviance brought a trademark infringement action 

against Enviance Services (“ES”) to enforce three U.S. trademark and 

service mark registrations for computer software for environmental 

regulation and compliance, as well as consulting in the area of 

environmental compliance.
249

  Enviance alleged that ES was using the 

term “Enviance” in its promotions, and that the use of the mark, in 

relation to ES, is designed to mislead consumers into believing the origin 

of goods and services is Enviance.
250

  The alleged free riding of ES on 

Enviance’s established green brand constitutes false environmental 

marketing about the quality of the software.  In addition, a customer 

fooled by this trademark infringement into purchasing and relying upon 

ineffective environmental compliance software might end up with non-

 

245. Complaint, supra note 243, ¶¶ 11–12. 

246. It is likely too early to tell whether eco-mark infringement has any attributable affects on 

the fight to curb climate change. 

247. See Complaint ¶ 10, Enviance, Inc. v. Enviance Servs. LLC, No. 3:12-cv-01374-CAB-BLM 

(S.D. Cal. June 7, 2012). 

248. Id. 

249. See id. ¶¶ 13–14. 

250. See id. ¶¶ 18–23. 



 

2013] Greenwashing 2.0 317 

compliant business operations.  That could mean higher GHG emissions 

and more damage to the environment.  With GHG emissions accounting 

and reduction being environmentally and legally important, the 

possibility of potentially inadequate infringing software and services 

displacing quality offerings could become a major greenwashing 

problem that could compromise complex schemes for managing 

greenhouse gas emissions. 

5.  Lighting Science Group:  Bridging Both Paradigms 

Viewing allegations of eco-mark infringement as potential 

greenwashing reveals many previously overlooked cases, including those 

where a clean tech product is marketed both to individual and 

commercial green consumers.  Such cases may be considered hybrids—a 

combination of traditional and new paradigm greenwashing—because 

the eco-mark infringement affects both types of consumers.  One 

example of a green product marketed directly to individual consumers as 

well as commercial consumers is LED lighting. 

Lighting Science Group (“LSG”) is a Florida-based designer and 

manufacturer of LED lighting products, including retrofit lamps, 

luminaires, and lighting solutions for architectural and design projects.
251

  

In June 2012, LSG asserted three U.S. trademark and service mark 

registrations for the mark LIGHTING SCIENCE against Electronic 

Lighting Science (“ELS”).
252

  LSG alleged that ELS’s use of the name 

“Electronic Lighting Science” and the phrase “Electronic Lighting 

Science LED Products” to sell LED lighting fixtures, bulbs and other 

products infringes LSG’s registered marks.
253

 

LSG’s complaint signals the hybrid nature of the company’s brand 

recognition and the alleged infringing activity at issue in the case.  The 

complaint notes that LSG’s eco-marks have become distinctive source 

identifiers because the company’s advertising and sales have yielded 

“consumer and[] distributor acceptance and recognition” of its marks.
254

  

Moreover, the alleged infringing use of LSG’s marks includes using the 

name “Electronic Lighting Science” to market and sell LED products to 

“distributors and individuals.”
255

  In light of LSG’s eco-mark 

 

251. See Complaint ¶¶ 3, 5, Lighting Sci. Grp. Corp. v. Elec. Lighting Sci., Inc., No. 2:12-cv-

05576-JFW-FMO (C.D. Cal. June 26, 2012). 

252. See id. ¶¶ 6, 13–20. 

253. See id. ¶¶ 13–20. 

254. See id. ¶ 8. 

255. See id. ¶ 16. 



 

318 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

enforcement on behalf of both LED distributors and individual 

purchasers of LED lighting products, this is at once a traditional 

paradigm and new paradigm greenwashing case, and this case seeks to 

ensure that both individual and commercial consumers enjoy high-

quality, energy-efficient LED lighting products. 

D.  New Paradigm Fraud Cases 

A third species of new paradigm cases involves allegations of fraud in 

connection with renewable energy and fuel credits.  The rise of 

government-issued credits to stimulate the production and use of 

renewable energy and reduce greenhouse gas emissions has created 

secondary markets in which the credits are traded and sold.
256

  Parties 

required to maintain certain levels of renewable energy or fuel 

production can purchase valid credits to demonstrate compliance, and 

these new markets can be fertile ground for fraudulent representations.
257

 

Promulgated under the Clean Air Act, the EPA Renewable Fuel 

Standard (“RFS”) Program requires “obligated parties” to sell gasoline 

containing a percentage of renewable fuel.
258

  To ensure that sufficient 

volumes of renewable fuel are produced and imported, companies in the 

gasoline business are required to meet annual Renewable Volume 

Obligations.
259

  One way these parties meet their obligations is by 

acquiring enough Renewable Identification Numbers (“RINs”) to 

demonstrate compliance.
260

  A RIN is a numeric code generated by a 

renewable fuel producer or importer that represents a gallon of renewable 

fuel.
261

 

 

256. See David Shaffer, Cargill Says It’s a Victim in Fraud Scheme, STAR TRIB. http://www.start 

ribune.com/business/171077631.html?refer=y (last updated Sept. 24, 2012) (“Companies can use 

RINs as proof of compliance with the federal biofuel blending mandate . . . .  The credits also can be 

legally traded on the commodities market separate from the fuel itself.”). 

257. See id. (“Although the U.S. Environmental Protection Agency set up the system, it says that 

trading in RINs is an unregulated ‘buyer-beware’ market.  Several oil companies, including Koch 

Industries, owner of a Minnesota refinery, also have been victims of the scam.”).  

258. See, e.g., Cargill, Inc. v. Int’l Exch. Servs., LLC, No. 1:12-cv-07042-HB, 2013 WL 76209, 

at *1 (S.D.N.Y. Jan. 8, 2013) (“Under the Clean Air Act (‘CAA’) and regulations issued by EPA 

governing the Renewable Fuel Standard Program, certain obligated parties may sell gasoline that 

contains an applicable percentage of renewable fuel only; the Renewable Volume Obligation 

(‘Volume Obligation’).”).  

259. See Complaint ¶ 10, Cargill, Inc. v. Int’l Exch. Servs., LLC, No. 12 Civ. 7042(HB) 

(S.D.N.Y. Sept. 18, 2012), 2012 WL 4090686; see also To Whom Does the Renewable Volume 

Obligation Apply?, 40 C.F.R. § 80.1106 (2013); Who is an Obligated Party Under the RFS 

Program?, 40 C.F.R. § 80.1406  (2013). 

260. Id. ¶ 10. 

261. Id. ¶ 9.  



 

2013] Greenwashing 2.0 319 

Cargill, a large multinational agribusiness, produces and sells biofuels 

and participates in energy markets.
262

  In September of 2012, Cargill 

sued International Exchange Services (“IES”), a commodities trader, for 

allegedly selling it invalid RINs.
263

  According to the complaint, the 

disputed RINs were purportedly originally issued by a producer called 

Double Diamond Biofuels (“Double Diamond”), but the RINs were 

invalid and not actually generated by Double Diamond.
264

  Although the 

two claims were dismissed, including the claim under the Clean Air Act, 

Cargill may go forward with its breach of contract claim.
265

 

It is unclear from the Cargill complaint who originally perpetrated the 

fraud, and indeed the named defendant may not even know, but the 

fraudulent activity represents a grave instance of greenwashing.  The 

creation of invalid RINs undermines the policy of the RFS Program—to 

ensure a certain level of renewable fuel in gasoline—by damaging the 

market for valid RINs and ultimately reducing the actual volume of 

biofuels in circulation.
266

  The RIN scam has hurt the biofuels industry 

by making obligated parties more wary of purchasing the credits from 

biodiesel producers.
267

  The fraud and resulting damage are recognizable 

under the new paradigm when we view putative RIN purchasers like 

Cargill as green commercial consumers falling victim to false 

representations about the validity of renewable energy-based financial 

products. 

IV.  IMPLICATIONS AND RECOMMENDATIONS 

This Part begins with a discussion of the greenwashing “blind spot”—

the lack of recognition of commercial consumer greenwashing cases by 

the media, legal commentators, and research organizations.  Next, this 

Part analyzes the implications raised by the new paradigm cases.  These 

include a new recognition that the greenwashing problem may be larger 

 

262. Id. ¶ 7.  

263. See id. ¶¶ 13–18.  

264. Id. ¶ 17. 

265. See Cargill, Inc. v. Int’l Exch. Servs., LLC, No. 1:12-cv-07042-HB, 2013 WL 76209, at *5 

(S.D.N.Y. Jan. 8, 2013) (granting IES’s motion to dismiss in part with respect to violations of the 

Clean Air Act and breach of warranties, and denying the motion to dismiss plaintiff’s breach of 

contract claim).  

266. See Shaffer, supra note 256 (“Ben Evans, director of federal communication for the 

National Biodiesel Board, a trade group, noted that  ‘A lot of our smaller producers have had trouble 

selling their RINs because obligated parties [such as oil companies] are reluctant to do business with 

them.’”). 

267. Id. 



 

320 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

than previously thought, the emergence of a more complex picture of the 

role of green brand owners in greenwashing cases, and recognition that 

we lack public regulation and enforcement of new paradigm 

greenwashing activity.  In view of the ramifications, this Part suggests 

areas of inquiry for further research on new paradigm greenwashing 

activity and proposes policy prescriptions for government oversight in 

commercial consumer greenwashing cases. 

A.  The Greenwashing Blind Spot 

Despite multiple instances of new paradigm greenwashing cases going 

back at least as far as 2006, and the fact that, at bottom, the allegations of 

these cases comport with the common definition of greenwashing, green 

commercial consumer cases appear to represent a blind spot for 

traditional media, research organizations, scholars, and even experienced 

legal practitioners.  This oversight may be due to the lack of individual 

green consumer involvement, which has been the touchstone of 

environmental marketing cases since the early 1970s.
268

  From a legal 

perspective, the absence of conventional false advertising claims might 

also contribute to this gap.  As discussed in the previous Part, the new 

paradigm causes of action include breach of contract and warranty, eco-

mark infringement, and in some instances, fraud.
269

 

Recent coverage of greenwashing in the mainstream media has 

focused expressly and almost exclusively on consumer products.
270

  Such 

articles and news reports typically discuss products used in the home 

such as paper towels and home cleaners.
271

  Perhaps this is unsurprising 

given the target audience. 

However, this blind spot extends to recent scholarly articles on 

greenwashing, as well.  Published law review articles on the subject 

typically focus on environmental marketing claims directed to individual 

 

268. See supra Part I.B–C. 

269. See supra Part III.B–D. 

270. See, e.g., 10 Worst Household Products for Greenwashing, CBC NEWS (Sept. 14, 2012), 

http://www.cbc.ca/news/canada/story/2012/09/14/greenwashing-labels-marketplace.html (listing 

antibacterial dish soap, biodegradable cloth, a frying pan, and household cleaners as products subject 

to greenwashing); Hassan Mirza, Coke, Fritos, and Walmart Greenwashing:  Are the Products You 

Buy Really Green?, POLICYMIC, http://www.policymic.com/articles/6781/coke-fritos-and-walmart-

greenwashing-are-the-products-you-buy-really-green (last visited Apr. 2, 2013) (discussing 

greenwashing in connection with lighting products, baby products, and soft drinks); Adria Vasil, 

How Can I Tell Which Product Seals are Greenwash?, NOWTORONTO, http://www.nowtoronto.com/ 

columns/ecoholic.cfm?content=188565, (last visited May 30, 2013) (discussing seals and labels used 

in connection with paper towels, cleaning products, home windows).  

271. See sources cited supra note 270.  



 

2013] Greenwashing 2.0 321 

consumers and treat greenwashing as a problem affecting individual 

green consumers, sometimes with special consideration given to certain 

demographics such as urbanites and senior citizens.
272

  Some authors are 

quite explicit in this regard, expressing their concern, for example, that 

“individual consumers must be assured that the products they purchase 

do, in fact, promote social change” through genuine environmental 

benefits.
273

  Such authors often underscore their emphasis on individual 

green consumers by citation to and discussion of consumer surveys.
274

  

Even recent articles by legal experts who practice in the field of 

advertising and green branding almost exclusively discuss individual 

consumer products and the traditional paradigm cases involving those 

products.
275

 

While there is some recognition by scholars and the media that 

greenwashing extends beyond narrow environmental marketing 

messages targeted to particular consumer products, these discussions do 

not take into account cases involving green commercial consumers.  

Instead, the broader view of greenwashing is limited to general corporate 

 

272. See, e.g., Elizabeth K. Coppolecchia, The Greenwashing Deluge:  Who Will Rise Above the 

Waters of Deceptive Advertising?, 64 U. MIAMI L. REV. 1353, 1355–56 (2010).  

 

 Consumers who purchase ‘green’ products may be completely unaware that their desire to 

purchase such products is heavily influenced by a need to join the ‘group’ of the moment, 

which currently happens to relate to socially conscious consumers, perhaps because ‘guilt over 

the environment is at a historic high.’ . . . .  The AARP recently conducted a study, determining 

that ‘there are 40 million ‘green boomers’ in the United States today,’ meaning that over half 

of the nation’s ‘baby boomers’ currently consider themselves to be ‘environmentally conscious 

consumers.’ 

 

Id.; Jessica E. Fliegelman, Note, The Next Generation of Greenwash:  Diminishing Consumer 

Confusion Through a National Eco-labeling Program, 37 FORDHAM URB. L.J. 1001, 1004 (2010).  

273. See Fliegelman, supra note 272, at 1004. 

274. See, e.g., id. at 1006 (“A study conducted in 2009 by WPP Green Brands found that thirty-

seven percent of consumers factored the environmental attributes of a product into their purchasing 

decisions, and seventy-seven percent of consumers considered a company’s ‘environmentally-

friendly reputation to be significant.”); Jacob Vos, Note,  Actions Speak Louder than Words:  

Greenwashing in Corporate America, 23 NOTRE DAME J.L. ETHICS & PUB. POL’Y 673, 680 (2009); 

Robert B. White, Note,  Preemption in Green Marketing:  The Case for Uniform Federal Marketing 

Definitions, 85 IND. L.J. 325, 325 (2010). 

275. See, e.g., David J. Gilles & Matthew T. Kemp, Greenwash:  Overselling a Product’s 

‘Greenness’, WISC. LAW., http://www.wisbar.org/NewsPublications/WisconsinLawyer/Pages/Articl 

e.aspx?Volume=85&Issue=6&ArticleID=2395, (last visited May 30, 2013) (discussing Windex 

greenwashing case and Fiji water bottle case); Ann Marie Mortimer, 7 Deadly Sins of “Green” 

Marketing, INSIDE COUNS. (Dec. 7, 2012), http://www.insidecounsel.com/2012/12/07/7-deadly-sins-

of-green-marketing (discussing different types of greenwashing by retailers and producers of 

products such as paper products, beauty products, and cleaning supplies). 



 

322 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

environmental sustainability messaging
276

 or government legislation.
277

  

In each case, however, the false or deceptive environmental marketing 

claims discussed are directed at individual consumers. 

Even The Six Sins of Greenwashing, published in 2007 by TerraChoice 

Environmental Marketing, and perhaps the most influential and most 

frequently cited greenwashing study during the period of the clean tech 

revolution, is exclusively focused on consumer products.
278

  This is 

evident in the subtitle of the study—A Study of Environmental Claims in 

North American Consumer Markets
279

—as well as the parameters of its 

survey, which was of “big box” stores and identified 1018 individual 

“consumer products.”
280

  One major consequence of the pervasive 

greenwashing discovered and documented by the study is that “the 

individual consumer has been misled.”
281

  Subsequent iterations of the 

study continued this theme and gave the appearance of an even narrower 

focus.  The Seven Sins of Greenwashing, published in 2009, featured 

“product categories of special consumer interest” such as “toys, baby 

products, cosmetics, and cleaning products.”
282

  In 2010, TerraChoice 

published The Sins of Greenwashing Home and Family Edition, which 

 

276. See Walmart Accused of Greenwashing, ENVTL. LEADER (Mar. 8, 2012), 

http://www.environmentalleader.com/2012/03/08/walmart-accused-of-greenwashing/ (“Since 

Walmart unveiled its sustainability campaign in 2005, the number of Americans with an unfavorable 

view of the company has fallen by nearly half, but its greenhouse gas emissions are increasing 

rapidly, according to Walmart’s Greenwash.”).  See generally Joseph J. Swartz, Comment, Thinking 

Green or Scheming Green?:  How and Why the FTC Green Guide Revisions Should Address 

Corporate Claims of Environmental Sustainability, 18 PENN. ST. ENVTL. L. REV. 95, 97-98 (2009) 

(arguing that the FTC should expand the reach of the Green Guides to include and regulate corporate 

claims of environmental sustainability). 

277. See Gibson, supra note 19, at 423 (“‘Greenwash’ is not limited to consumer advertising and 

marketing:  the Clear Skies Act enacted under the Bush Administration has drawn nationwide ire 

from environmental groups for weakening environmental protections despite being marketed as 

environmentally beneficial.”). 

278. See generally TERRACHOICE ENVTL. MKTG., INC., THE SIX SINS OF GREENWASHING:  A 

STUDY OF ENVIRONMENTAL CLAIMS IN NORTH AMERICAN CONSUMER MARKETS (2007), available 

at http://sinsofgreenwashing.org/index6b90.pdf (discussing its study of greenwashing in connection 

with consumer products sold at ‘big box’ stores). 

279. See id. 

280. Id. at 1 (“In an effort to describe, understand, and quantify the growth of greenwashing, 

TerraChoice Environmental Marketing, Inc. conducted a survey of six category-leading ‘big box’ 

stores.  Through these surveys, we identified 1,018 consumer products bearing 1,753 environmental 

claims.”). 

281. Id. (“These findings suggest that greenwashing is pervasive, the consequences of which are 

significant . . . .”). 

282. See TERRACHOICE ENVTL. MKTG., INC., THE SEVEN SINS OF GREENWASHING:  

ENVIRONMENTAL CLAIMS IN CONSUMER MARKETS:  SUMMARY REPORT:  NORTH AMERICA 2 

(2009), available at http://sinsofgreenwashing.org/indexd49f.pdf. 

http://www.newrules.org/sites/newrules.org/files/walmart-greenwash-report.pdf


 

2013] Greenwashing 2.0 323 

focused on environmental marketing claims made in connection with 

home and family products.
283

 

To be sure, much of this media, literature, and research make valuable 

contributions to our understanding of the nature of greenwashing and 

public awareness of the problem.  The scholarly articles, in particular, 

provide thoughtful insights and creative ideas on policies to combat the 

problem of greenwashing.  However, these contributions apply to the 

traditional paradigm greenwashing cases involving environmental 

marketing of consumer products to individual consumers. 

It is important to note, however, that these cases remain very relevant.  

The new greenwashing paradigm has not replaced the traditional 

paradigm—as discussed above,
284

 traditional paradigm greenwashing 

cases are still prevalent today and will remain so.  However, the new 

paradigm must also be recognized and considered as it represents a 

relatively new and largely ignored part of the greenwashing story.  Green 

commercial consumer cases such as those involving wind turbines, solar 

panels, and cogeneration units, have potentially significant implications 

due to the impact these large green technology products have on climate 

change and other aspects of the environment.
285

  The narrow and 

exclusive attention paid to traditional greenwashing paradigm cases, 

perpetuated and reinforced by recent literature and research, therefore 

represents a serious greenwashing blind spot.  The new greenwashing 

paradigm, with a more expansive view encompassing environmental 

marketing to green commercial consumers, eliminates this blind spot. 

B.  Implications of New Paradigm Cases 

1.  A Larger Problem than We Thought 

Eliminating the greenwashing blind spot to reveal the previously 

unexamined green commercial consumer cases gives rise to several 

implications.  First is the recognition that, by previously ignoring a large 

and significant subset of greenwashing cases, we may have seriously 

underestimated the effects of greenwashing.  Accordingly, greenwashing 

is likely more problematic and more pervasive than previously 

recognized and acknowledged because it is not limited to individual 

consumer products having purported green features, but also involves 

 

283. See TERRACHOICE, THE SINS OF GREENWASHING:  HOME AND FAMILY EDITION 5 (2010), 

available at http://sinsofgreenwashing.org/index35c6.pdf. 

284. See supra Part I.C. 

285. See supra Part III.B–D. 



 

324 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

major industrial and commercial green technologies whose sole purpose 

is to provide environmental benefits through clean energy generation.  

Counterfeit solar modules can potentially impact thousands of customers 

of a company like Suntech, which has sold and delivered more than 15 

million modules.
286

  Assuming a successful sale and reliable turbines, the 

Glenmore and Kumeyaay wind farms together should produce over sixty 

MW of power.
287

  These renewable energy products and projects can 

have a large impact on the environment and the fight against climate 

change. 

2.  More Complex Role of the Green Brand Owner 

Not only did we underestimate the scope of the problem, we also 

missed the subtleties inherent in some of the new greenwashing cases.  A 

second implication is that the players and activities in greenwashing and 

anti-greenwashing actions are more nuanced than previously thought.  In 

particular, the eco-mark infringement actions under the new paradigm 

reveal that green brand owners are not only greenwashers, as it appeared 

in the traditional paradigm cases, but also undertake the important role of 

anti-greenwashing enforcers. 

Under the traditional paradigm, the established green brand owner has 

almost exclusively played just one role:  the greenwasher.  From 

Standard Oil’s purportedly emissions-reducing Chevron F-310 gasoline 

and National Fuelsaver’s allegedly false claims about the Gasaver’s fuel 

economy benefits to Hefty’s “degradable” garbage bags, the Windex 

Greenlist label, and the Green Drop label on Fuji’s water bottles, it was 

always the green brand owner engaged in the alleged false or misleading 

environmental marketing.  The false or misleading product information, 

and the harm, flowed in a linear fashion from green brand owner to 

individual consumer.  Thus, one might infer from the traditional 

paradigm greenwashing cases that the green brand owner is always the 

transgressor accused of deceiving consumers. 

However, a more complex picture emerges in the new paradigm eco-

mark infringement actions.  In these cases, the green brand owner plays 

 

286. See Press Release, Suntech, Suntech Reports Third Quarter 2011 Financial Results (Nov. 

22, 2011), available at http://ir.suntech-power.com/phoenix.zhtml?c=192654&p=irol-newsArticle& 

ID=1632766&highlight=. 

287. See Complaint, supra note 175, at 15 (“Pursuant to the terms of the Agreement, Plaintiff 

paid $250,000 (the ‘Fee’) to Defendants as consideration for the exclusive right to purchase or sell 

Defendants’ interests in its 14 megawatt wind farm project (the ‘Project’) during the term of the 

Agreement.”); see Complaint, supra note 175, at 11 (“The Wind Farm, operational since January 16, 

2006, consists of twenty-five G87X 2.0 MW wind turbines.”). 



 

2013] Greenwashing 2.0 325 

the critical role of anti-greenwashing enforcer acting to protect 

themselves and green commercial consumers.
288

  In the Suntech case,
289

 

the goods at issue were Suntech-branded solar modules, the deceptive 

environmental marketing claims were the false Sun Tech labels on 

counterfeit modules, and the anti-greenwashing enforcement in the form 

of the eco-mark infringement action was brought by Suntech Power 

Holdings on behalf of its green commercial consumers.  The Nordic
290

 

and Voltaix
291

 cases present analogous situations in which the companies 

that own the green brands, for wind turbines and solar manufacturing 

chemicals, respectively, brought eco-mark infringement actions against 

parties engaged in greenwashing via alleged infringement.  Instead of 

linear flow of product information from green brand owner to consumer, 

the deceptive marketing in the eco-mark cases bypasses the green brand 

owner entirely and flows from infringer to commercial consumer. 

In most of these cases, the greenwashing enforcers are also arguably 

victims of greenwashing as the harm flows not only to customers but also 

to green brand owners.  Suntech is undoubtedly a valuable brand in the 

solar industry, and Nordic had much to protect in its trademark as well.
292

  

While these eco-mark owners wanted to protect their consumers from the 

effects of infringing goods, they were also almost certainly motivated to 

mitigate any harm to their brands from free riders and counterfeiters.  

Accordingly, one lesson learned from the new paradigm cases is that it 

would be wrong to assume the green brand owner plays the role of the 

transgressor in all greenwashing cases.  Rather, green brand owners are 

multi-dimensional characters in the greenwashing story, playing 

different, often contradictory roles under the traditional and new 

paradigms. 

 

288. It should be noted that, on rare occasions, a green brand owner acts as an anti-greenwashing 

enforcer in a traditional paradigm greenwashing case.  See Complaint, Biodegradable Product 

Institute v. Le, Case No. 2:08-cv-03661-FMC-VBKx at ¶ 14 (C.D. Cal. June 4, 2008)  (alleging 

defendants infringed plaintiff’s COMPOSTABLE certification mark by displaying the mark on 

products that had not been certified).  However, it is the perspective gained from viewing cases 

under the new paradigm that allows us to see this role of the Biodegradable Products Institute as 

anti-greenwashing enforcer in an eco-mark infringement action. 

289. Supra Part III.C.1. 

290. Supra Part III.C.2. 

291. Supra Part III.C.3. 

292. See, e.g., Press Release, Nordic Windpower, Nordic Windpower Offered $16 Million DOE 

Loan Guarantee to Expand its US Wind Turbine Production (July 2, 2009), available at 

http://commerce.idaho.gov/news/2009/07/nordic-windpower-offered-16m-doe-loan-guarantee-to-ex 

pand-its-us-wind-turbine-production.aspx. 



 

326 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

3.  Very Limited Public Oversight 

A third implication of implementing the new greenwashing paradigm 

is the existence of a large subset of potentially high impact cases 

prosecuted and resolved almost entirely by private legal actions.  As 

discussed in Part III, the new paradigm cases include breach of contract 

actions, eco-mark infringement suits, and occasionally allegations of 

fraud.  With the possible exception of some of the fraud cases in which 

alleged greenwashers may be subject to criminal prosecution, 

governments are not involved in green commercial consumer cases.
293

 

This is in marked contrast to the traditional paradigm cases, in which 

consumer protection agencies of governments around the world 

complement private consumer actions with active policing and 

enforcement of false advertising laws on behalf of individual green 

consumers.
294

  The lack of public oversight of new paradigm cases may 

be reason for concern.  This author previously argued that public 

enforcement against traditional paradigm greenwashers is more 

predictable in its outcome and seems to yield more favorable results for 

individual green consumers than private actions.
295

  To be sure, the new 

paradigm B-to-B scenarios differ from these individual consumer actions 

in that many green commercial consumers are more sophisticated than 

individuals and have greater resources to negotiate and litigate with new 

paradigm greenwashers.  Nevertheless, a similar pattern could hold with 

regard to judicial outcomes of commercial consumer cases. 

C. Recommendations 

1.   Further Research on Greenwashing Activity, Players, and Case 

Results 

Recognition of the commercial consumer cases and their implications 

for the problem of greenwashing also opens the door to future avenues of 

research and to policy suggestions.  As an initial matter, the new 

paradigm cases constitute a large new category of greenwashing activity, 

and the full effects of these legal actions have not been explored.  

Therefore, a necessary first step is to study these instances of commercial 

 

293. See supra Part III.B–C (the new paradigm breach of contract and eco-mark infringement 

cases are actions between private parties). 

294. See supra Part I.C. 

295. See generally Eric L. Lane, Consumer Protection in the Eco-mark Era:  A Preliminary 

Survey and Assessment of Anti-greenwashing Activity and Eco-mark Enforcement, 9 J. MARSHALL 

REV. INTELL. PROP. L. 742 (2010).  



 

2013] Greenwashing 2.0 327 

consumer greenwashing in greater detail.  These new paradigm cases 

should be analyzed for the type of greenwashing activity at issue, the 

effectiveness of their results, and the roles of the players involved, 

particularly the green brand owner. 

It would be useful to elucidate exactly what kinds of 

misrepresentations are being made to green commercial consumers by 

compiling a catalog of false or misleading claims.  To this end, a report 

analogous to the TerraChoice study based on a survey of instances of 

new paradigm greenwashing—The Seven Sins of Greenwashing:  

Environmental Claims in Commercial Consumer Markets—would be 

valuable.  Green commercial consumers could use this information to 

inform their purchasing decisions.  Armed with these data, companies 

like DeWind, Kumeyaay, and Cogen would be in better equipped to 

identify greenwashing.  They could take greater care in examining 

representations about the goods or services on offer, ask the right 

questions, and negotiate more secure deals.  By the same token, the 

increased transparency might force manufacturers of clean tech goods 

and providers of green services to refrain from making false or deceptive 

claims and substantiate the representations they do make. 

In addition, it would be helpful to study the outcomes of new paradigm 

cases.  Analysis of jury verdicts, court orders, and settlements in 

commercial consumer greenwashing litigation could shed some light on 

the effectiveness of this anti-greenwashing activity.  A systematic study 

of the results of these cases might provide an understanding of which 

remedies work and which do not, leading to informed recommendations 

about policies to protect green commercial consumers.  It could also 

indicate whether the private legal actions that constitute the new 

paradigm cases are sufficient to combat this greenwashing or if some 

form of public enforcement would be necessary or desirable. 

Finally, analysis of the roles of various players in greenwashing 

activity and anti-greenwashing enforcement could be useful.  For 

instance, the green brand owner appears to be transgressor, victim, or 

enforcer depending on the type of case and whether it involves individual 

consumers or commercial consumers.  It would be helpful to know 

whether this complexity means the green brand owner needs additional 

legal protection or support in some of the new paradigm cases. 

2.  Government Reporting Requirements and Enforcement 

As discussed above, the government typically plays no role in B-to-B 

greenwashing cases.  There is no public oversight of new paradigm 



 

328 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

greenwashing activity, let alone public enforcement actions against the 

new greenwashers, despite a substantial public interest in growing the 

clean tech industry and generating power from renewable resources.  In 

view of the potential environmental impact of private commercial 

consumer actions and the uncertainty about the adequacy of their results, 

public oversight of these cases and public enforcement may be desirable. 

To give governments the ability to track these cases in the future, 

certain agencies could impose a mandatory reporting requirement for 

commercial consumer greenwashing litigation.  Any time a complaint is 

filed initiating a new paradigm anti-greenwashing legal action, the 

plaintiff would be obligated to report the existence of the litigation to the 

government.  This would ensure that the government is at least aware 

that such cases have been filed. 

A duty to report litigation to a government agency whose mission 

relates to the nature of the dispute is not unprecedented.  The U.S. Patent 

and Trademark Office (“PTO”), for example, requires that an applicant 

for a patent must inform the PTO of any litigation involving the same 

subject matter as that of the patent application.
296

  In addition, the 

specialized reissue application process in the PTO triggers a duty to 

report litigation or any other proceedings involving the same patent.
297

 

Good candidate agencies to process new paradigm greenwashing 

litigation reports include the FTC, the EPA, and the DOE.  As discussed 

above, the FTC has considerable experience with the subject of 

environmental marketing.  The agency exercises its expertise in both 

regulation of environmental marketing claims, as evidenced by the Green 

Guides, and in anti-greenwashing enforcement, which the agency has 

undertaken numerous times dating back to the early 1990s.  The EPA has 

environmental expertise and is no stranger to reporting requirements, 

including a rigorous Greenhouse Gas Reporting Program (“GHGRP”).
298

  
 

296. See DEP’T OF COMMERCE, MANUAL OF PATENT EXAMINING PROCEDURE § 2001.06(c) (8th 

Ed. Latest Rev. Aug. 2012), available at http://www.uspto.gov/web/offices/pac/mpep/index.html 

(“Where the subject matter for which a patent is being sought is or has been involved in litigation, 

the existence of such litigation and any other material information arising therefrom must be brought 

to the attention of the U.S. Patent and Trademark Office.”). 

297. See Original Patent; Continuing Duty of Applicant, 37 C.F.R. § 1.178(b) (2013) (“In any 

reissue application before the Office, the applicant must call to the attention of the Office any prior 

or concurrent proceedings in which the patent (for which reissue is requested) is or was involved, 

such as interferences, reissues, reexaminations, or litigations and the results of such proceedings.”) 

(internal citation omitted). 

298. See EPA Greenhouse Gas Reporting Program, EPA, http://www.epa.gov/ghgreporting/ 

(last visited Jan. 23, 2013); see also, 40 C.F.R. §§ 98.32–34, 98.42–44, 98.52–54, 98.62–64 (2013) 

(discussing greenhouse gas emissions reporting, calculation, and monitoring requirements for several 

categories of emissions sources).  



 

2013] Greenwashing 2.0 329 

The GHGRP requires that certain businesses and institutions report 

greenhouse gas data and other relevant emissions information.
299

  The 

DOE has been closely involved in green technology research and 

development efforts and clean energy policy in recent years.
300

  

Moreover, together with the EPA, the agency works directly with 

businesses on the data intensive Energy Star energy efficiency 

certification program.
301

  The DOE even has some enforcement 

experience in connection with the Energy Star program.  Outside the 

United States, consumer protection agencies such as Britain’s 

Advertising Standards Authority and the Australian Consumer and 

Competition Commission, as well as analogous environmental and 

energy ministries could impose similar requirements. 

To ensure the government agency receives complete information, the 

reporting requirement might be continuous, and extend to any dispositive 

rulings, settlements, and remedies resulting from the litigation.  Again, 

the PTO reporting requirement provides instructive precedent here.  The 

PTO recognizes that documents and evidence produced in litigation must 

be reported if they contain information material to the examination of the 

subject patent application.
302

  With access to this information on an 

ongoing basis, the agency would be equipped to assess the effectiveness 

of private anti-greenwashing enforcement activity.  If, after a full review 

of a case, the agency determines that the outcome was not sufficient to 

protect the green commercial consumer or consumers affected, a formal 

investigation could be launched. 

At this point in the process, it would be beneficial for the investigating 

agency to examine whether the greenwashing activity at issue could have 

a significant adverse impact on efforts to curb climate change.  Here, the 

expertise of the EPA and the DOE would be quite valuable.  Taking the 

 

299. See EPA Greenhouse Gas Reporting Program:  For GHG Reporters, EPA, http://www.epa 

.gov/ghgreporting/reporters/index.html (last visited Jan. 23, 2013). 

300. E.g., From R&D to You:  A Thriving Innovation Engine, DEP’T OF ENERGY (Oct. 25, 2011, 

11:04 AM), http://energy.gov/articles/rd-you-thriving-innovation-engine (“The Energy Department 

plays a key role in moving innovative energy technologies developed in research labs across the 

country into the commercial marketplace, fueling the innovation engine that powers the U.S. 

economy.”); Secretary Chu Unveils the 2011 Strategic Plan, DEP’T OF ENERGY (May 12, 2011, 1:02 

PM), http://energy.gov/articles/secretary-chu-unveils-2011-strategic-plan (detailing how the 

Department’s 2011 Strategic Plan serves as a blueprint to help address the nation’s energy, 

environmental, and nuclear challenges). 

301. See About ENERGY STAR, ENERGYSTAR, http://www.energystar.gov/index.cfm?c=about 

.ab_index (last visited Apr. 15, 2013). 

302. DEP’T OF COMMERCE, supra note 296, at § 2001.06(c) (“Such [material] information might 

arise during litigation in, for example, pleadings, admissions, discovery including interrogatories, 

depositions, and other documents and testimony.”). 



 

330 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

breach of contract actions involving wind farms and cogeneration 

equipment and the Suntech counterfeit solar module case as 

representative examples, new paradigm greenwashing cases arguably 

invoke this concern.  In the case where a new paradigm lawsuit is 

deemed to yield unsatisfactory results for both a green commercial 

consumer and the environment, a potential next step would be public 

enforcement against the commercial greenwasher.  A separate action 

brought by the FTC or DOE might achieve the kind of positive result that 

was lacking in the private lawsuit.  The agency should step in, however, 

only after the lawsuit has been finally resolved and the parties have 

exhausted all private legal remedies.  Thus, the public enforcement 

option would be a last resort exercised under limited circumstances to 

minimize interference in private disputes.  In this way, a reporting 

requirement informing an agency of commercial consumer 

greenwashing, coupled with an agency enforcement option, could be a 

powerful tool to combat new paradigm greenwashing activity. 

V.  CONCLUSION 

Greenwashing is a pervasive problem that, cumulatively, can have a 

significant adverse impact on efforts to mitigate climate change.  

Ubiquitous today, deceptive environmental marketing dates back to at 

least the early 1970s.  Prior to the current clean tech boom of the early 

twenty-first century, nearly all instances of suspect environmental 

marketing were perpetuated in connection with general corporate spin or 

green branding of consumer products, and were directed to individual 

green consumers.  Accordingly, the study, analysis and commentary on 

greenwashing focused exclusively on consumer products and individual 

consumers.  Anti-greenwashing efforts were overwhelmingly comprised 

of legal actions by and on behalf of individual green consumers.  Thus, 

the traditional greenwashing paradigm contemplated only false or 

misleading environmental marketing directed to individual green 

consumers, its effects on these consumers, and how to protect individual 

consumers. 

With the advent of the clean tech revolution, the lines of 

communication for environmental marketing messages became more 

numerous and complex.  The clean tech industry, a large commercial 

ecosystem comprised of many business consumers situated at various 

points in the supply chain, has proved to be fertile ground for false and 

deceptive representations of environmental benefits.  Indeed, a number 

of instances of false, misleading, and even fraudulent claims made to 



 

2013] Greenwashing 2.0 331 

green commercial consumers in connection with renewable energy 

products and projects have arisen in the last several years.  Such cases, 

though representing a significant new category of greenwashing, do not 

register under the traditional greenwashing paradigm.  In other words, 

the traditional paradigm creates and perpetuates a significant 

greenwashing blind spot. 

Accordingly, a new greenwashing paradigm is required to recognize 

the important new species of cases that implicate critical green 

technologies and the commercial consumers that purchase, deploy and 

operate them.  The new paradigm views greenwashing expansively to 

include false or deceptive representations made to green commercial 

consumers and legal actions brought by or on behalf of these clean tech 

commercial consumers.  By implementing the new greenwashing 

paradigm, we recognize these green commercial consumer cases for what 

they really are—greenwashing cases. 

The ramifications of this are significant.  First, we may have 

dramatically underestimated the scope of the greenwashing problem.  

Second, our consistent typecasting of the green brand owner in the role 

of greenwasher was over-simplified.  Rather, the eco-mark infringement 

suits that emerge under the new paradigm demonstrate that the green 

brand owner plays a more nuanced role as both victim and anti-

greenwashing enforcer.  Finally, it becomes apparent that we lack any 

government enforcement or even oversight of this large and potentially 

environmentally damaging class of greenwashing activity. 

Accordingly, further research and study of new paradigm 

greenwashing cases is needed to fully understand the type of activity 

involved, its potential impact, and the effectiveness of any remedies 

achieved.  Government agencies charged with consumer protection, 

environmental protection, and energy policy might consider 

implementing a reporting requirement for new paradigm greenwashing 

litigation to facilitate some level of public oversight.  The government 

could bring independent public enforcement actions in cases where the 

greenwashing activity would have adverse environmental impact and 

private legal actions have not achieved satisfactory results.  The new 

greenwashing paradigm, then, provides the broader vantage point 

necessary to identify, understand, and hopefully combat, all instances of 

greenwashing.