Stephanie Nham

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Can you live without clothing? One who prefers wearing nothing must forgo some social activities as nudity in public is unlawful.[1] Clothing serves a fundamental necessity for survival and living.[2] Humans began wearing clothes to camouflage, then to adapt to different weathers, and then to wear styles.[3] As technology evolved, clothing became fashion, taking root smoothly in our culture and society. Fashion refers to “a prevailing custom, usage, or style,” or “social standing or prominence especially as signalized by dress or conduct.”[4] What, how, and when one wears visually voices overlapping identities.[5]

Responding to fashion consumers’ desire for trendier styles, fashion companies offer affordable versions of the latest trend called fast fashion.[6] Access to online shopping further made fast fashion globally attainable to all individuals.[7] The fashion industry produces $2.5 trillion dollars per year—which constitute 3% of the global economy—and employs hundreds of millions of people worldwide.[8] Prior to the 1960’s, 90% of clothing purchased in the United States was produced domestically; today, only about 3% of clothing falls into that category.[9]

Nonetheless, the fashion industry’s global impacts are incredibly shocking.[10] Not only has the fashion industry become the second most polluting industry after the oil industry, but also fast fashion has pressed companies to find ever-cheaper sources abroad with little to no environmental regulation.[11] More than ten million tons of clothes end up in landfills annually in the United States alone and produce 20% of global wastewater.[12] Some textile manufacturers targeted children for cheap labor because much of the production requires low-skilled labor.[13]

Since consumers call for purchasing sustainable fashion, fashion brands use words: “ethical, fair trade, organic, natural, sweat-shop free, recycled, and even second hand or vintage” to make consumers believe that their clothing is environmentally friendly.[14] Yet, fashion companies often abuse those ethically-sounding words to mislead consumers. They may abuse those green terms as a marketing scam called “greenwashing.”[15] The term greenwashing means companies pretend to be more environmentally friendly and sustainable than they actually are.[16] What is more, online shopping through e-commerce platforms is increasing fast fashion and greenwashing trends.[17]

How should governments react to greenwashing in the fashion industry? Unfortunately, the existing laws are insufficient to catch such green lies and protect consumers in fashion. The Federal Trade Commission Act (FTCA) prohibits unfair or deceptive-advertising practices.[18] The Federal Trade Commission (FTC) issued the Green Guides that describe the types of environmental claims that FTC may or may not find deceptive under the section 5 of FTCA.[19] The Green Guides address greenwashing and help marketers in all industries avoid making environmental claims that mislead consumers.[20] They may guide fashion companies to understand what words may suitable for marketing green products in their labels under the law.[21] However, the Green Guides are neither legally binding nor independently enforceable.[22] Indeed, fashion companies may freely use eco-labels unless the FTC takes an enforcement action when “a marketer makes an environmental claim that is inconsistent with the Green Guides.”[23] Like organic food labeling under the U.S. Department of Agriculture (USDA), the FTC must rebuild the Green Guides that set a uniform national standard of certifying fashion labels and provide for necessary enforcement.

This Note argues that the existing laws under the FTCA lack the force to protect fashion consumers from greenwashing. Part I introduces fast fashion and its adverse impacts on labor rights and the environment, and Part II presents the risk of greenwashing in the fashion industry. Part III discusses the existing laws enforced by the FTC, the USDA, and the Securities and Exchange Commission (SEC). It further explores the associated impacts on fashion brands under the existing laws and potential solutions to catch greenwashing in fashion. Lastly, Part IV concludes how Congress and the FTC should act in protecting consumers from greenwashing in fashion.

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[1] See City of Erie v. Pap’s A.M., 529 U.S. 277, 278–79 (2000) (finding that prohibiting “all public nudity, regardless of whether that nudity is accompanied by expressive activity” constitutes content-neutral regulation and does not violate the First Amendment’s Free Speech Clause when the law was to combat crime or other negative secondary effects).

[2] Importance of Textiles in Our Lives, Textile Value Chain (Dec. 13, 2020), https://textilevaluechain.in/news-insights/importance-of-textiles-in-our-lives.

[3] Id.

[4] Fashion, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/fashion (last updated Feb. 11, 2022).  

[5] Henry Navarro Delgado, Fashion’s Potential to Influence Politics and Culture, The Conversation (Jan. 22, 2018), https://theconversation.com/fashions-potential-to-influence-politics-and-culture-90077; Susan B. Kaiser, Fashion and Identity, Love to Know, https://fashion-history.lovetoknow.com/fashion-history-eras/fashion-identity (last visited Apr. 22, 2022).

[6] Fast Fashion Pros and Cons, Rampages (Mar. 20, 2017), https://rampages.us/fastfashion/2017/03/20/fast-fashion-pros-and-cons.

[7] Id.

[8] Elizabeth Jane Poland, Fashioning Compliance: The Fashion Charter for Climate Action and Strategies for Forming a More Effective Fashion Industry Agreement, 49 Ga. J. Int’l & Comp. L. 407, 415 (2021).

[9] Lindsey Reid, Fast–Fashion: Unethical and Unsustainable, U. Ala. Birmingham Inst. Hum. Rts. Blog (Apr. 26, 2018), https://perma.cc/BZ85-MQH7.

[10] See Poland, supra note 8, at 415 (identifying fashion industry’s global impacts on the environment happens mostly through production steps where raw materials are grown or produced, processed and prepared for construction, and then finished into a final clothing, and detailing each fabric creates its own “complex and hefty” ecological footprint including greenhouse gases, soil erosion, water pollution, biodiversity loss, and toxic heavy metals).

[11] Marina Qutab, What’s the Second Most Polluting Industry? (We’ll Give You A Hint – You’re Wearing It), One Green Planet, https://www.onegreenplanet.org/environment/clothing-industry-second-most-polluting, (last visited Apr. 8, 2022); see Jasmin Malik Chua, The Environment and Economy Are Paying the Price for Fast Fashion–But There’s Hope, VOX (Sep. 2019), https://perma.cc/M3LH-TVLQ (addressing the need of legally binding commitments to fix fast fashion’s environmental disaster). 

[12] Marc Bain, H&M’s “Sustainability” Report Hides the Unsustainable Reality of Fast Fashion, Quartz, https://qz.com/380055/hms-sustainability-report-hides-the-unsustainable-reality-of-fast-fashion (last updated July 9, 2015); Cyril Villemain, UN Launches Drive to Highlight Environmental Cost of Staying Fashionable, U.N. News (Mar 25, 2019), https://news.un.org/en/story/2019/03/1035161.

[13] Josephine Moulds, Child Labour in the Fashion Supply Chain, The Guardian, https://labs.theguardian.com/unicef-child-labour (last visited Apr. 8, 2022) (“There is no supervision or social control mechanisms, no unions that can help [child labor] to bargain for better working conditions. [Children] are very low-skilled workers without a voice, so they are easy targets.”).

[14] Poland, supra note 8, at 417 (emphasis added); see Ameena Khan, Greenwashing: The Latest Trend in Fast Fashion, Trinitonian (Sept. 23, 2021), https://trinitonian.com/2021/09/23/greenwashing-the-latest-trend-in-fast-fashion. (“According to Genomatica, despite greenwashing efforts, 3 in 4 American consumers are aware of the sustainability issues in fast fashion. Over half of consumers say sustainability is important and are interested in buying sustainable clothing.”).

[15] Modestas Mankus, Sustainable Fashion: What is Greenwashing?, Ourculture (Jan. 2, 2021), https://ourculturemag.com/2021/01/02/sustainable-fashion-what-is-greenwashing-updated.

[16] Paulina Kulczycki, Greenwashing in Fashion: What It Is and How to Spot It, Sanvt (May 31, 2021), https://sanvt.com/journal/what-is-greenwashing-in-fashion.

[17] Hala Abdel-Jaber, The Devil Wears Zara: Why the Lanham Act Must Be Amended in the Era of Fast Fashion, 15 Ohio St. Bus. L.J. 234, 237 (Aug. 6, 2021).

[18] FTC Act § 5, 15 U.S.C. § 45(a)(2) (2006).

[19] Nick Feinstein, Learning from Past Mistakes: Future Regulation to Prevent Greenwashing, 40 B.C. Envtl. Aff. L. Rev. 229, 242 (2013).

[20] Green Guides, FTC, https://www.ftc.gov/news-events/media-resources/truth-advertising/green-guides (last visited Apr. 22, 2022).

[21] Ani Wells, The Green Guides: What Are They and Why Do They Need Updating?, Simply Suzette (May 24, 2021), https://www.simplysuzette.com/blogs/the-green-guides-what-are-they.

[22] Feinstein, supra note 19, at 242.

[23] Monica J. Stover, Environmental Marketing Claims and the FTC’s “Revised Green Guides”, 37 Mich. Envt’l L. J 2 (2020), https://connect.michbar.org/envlaw/blogs/environmental-law-journal/2020/05/14/environmental-marketing-claims-and-the-ftcs-revise.