Clothing retailer Everlane—which prides itself on “consciously crafted” essentials—was just two years old in 2012, the last time US regulators updated guidance on how companies can tout their environmental credentials to customers.
Since then, terms like sustainable, carbon neutral and organic have become commonplace among fashion brands, leaving Everlane and other US retailers frustrated as they wait for an update to the Federal Trade Commission’s Green Guides for using such marketing terms. Such an update could appease consumers skeptical about loose marketing claims, help shield companies from litigation and get the US closer to keeping pace with the European Union, which is on the brink of requiring companies to provide evidence to back up their environmental labeling.
Until there are more uniform standards, clothing retailers are trying to thread the needle on how best to present their products and environmental initiatives.
“There’s a large reluctance to share that information, because they aren’t confident that the manner in which they’ve collected it is going to be acceptable,” said Chelsea Murtha, senior director of sustainability at the American Apparel & Footwear Association, a trade association with over 1,000 members including Bloomingdale’s, Calvin Klein and Jimmy Choo, speaking about the industry overall.
Katina Boutis, director of sustainability at Everlane, said that US laws and government guidance are lagging far behind the speed at which the apparel industry and consumers are evolving on environmental efforts.
“On the one hand, we know that we have to be able to communicate about these issues to our customers in a way that they don’t need a Ph.D. to understand what we’re talking about, which is one very difficult side of it,” Boutis said. “At the same time, we can’t dumb down that language or trivialize the issues that we’re talking about.”
Patagonia’s Corley Kenna, head of communications and policy, said the lack of a clear definition for the term sustainable, for example, leads to brands throwing around phrases because “somehow they’ve become interesting, buzzy marketing terms.”
“What does that really mean? Unless there is some rigor behind that, the word becomes pretty meaningless,” she said.
While the US apparel industry awaits clarity, international regulators and even some US state legislatures are stepping in to fill the void. The European Parliament on Jan. 17 voted to implement a new directive to root out greenwashing. That directive, which still must be approved by the European Council before it can be implemented by member states, will ban companies from using terms including “environmentally friendly” and “climate neutral” without backing it up. A newly enacted California law, meanwhile, targets use of the recycling chasing-arrows symbol on products that could include clothing packaging, for example.
The California law, which took effect this year, applies to companies doing business in the state. The EU rules would also apply to US-based companies that do business there.
“We’ve been working with the framework that the regulation being led by the EU will eventually make its way to the US,” said Eve Morel, a Paris-based ESG compliance officer at lingerie brand Adore Me, which was founded a year before the 2012 Green Guides update.
The FTC, whose Green Guides are intended to help companies avoid making deceptive marketing claims, has indicated that it’s looking to shed more light on terms like “sustainable” and “recyclable.” The regulator decided not to issue guidance on the term “sustainable” in 2012 when it last updated the guides, but started examining possible additional updates last year.
The commission’s Green Guides are not legally binding, but they influence state laws on marketing fraud and even how plaintiffs wield claims in greenwashing lawsuits. The FTC can take actions against companies that it accuses of making deceptive environmental claims—for example, in 2022 when Walmart and Kohl’s agreed to pay the FTC $5.5 million in total after the regulator accused the retailers of falsely marketing rayon textile products as bamboo.
The FTC, which declined to comment for this article, has not provided a timeline for finishing its Green Guides review.
Brands like Patagonia and Everlane also have been advocating for additional legislative changes like California’s climate disclosure rule, which was recently signed by Gov. Gavin Newsom (D) and will begin to take effect in 2026. The law will mandate disclosure for businesses’ direct and indirect greenhouse gas emissions.
The brands are also backing the Fashion Sustainability and Social Accountability Act, which was reintroduced for a second time in the New York state legislature last year. If passed, the bill would require companies to pay more attention to their social and environmental impact in their supply chains. A website for the Act notes that the apparel and footwear industries are responsible for about 4% to 8.6% of global greenhouse gas emissions, a problem made worse in recent years by the ballooning fast fashion industry.
But having a hodgepodge of requirements in different states or jurisdictions could create its own complications, Murtha said. The American Apparel & Footwear Association is advocating to ensure that states move in lockstep as they pass laws on sustainable fashion.
Gray areas on what could be considered misleading labeling or marketing to consumers can land a company in court. But judges so far have delivered some notable wins for the fashion industry.
Footwear and clothing company Allbirds, a brand that focuses on reducing its environmental impact, beat a lawsuit in 2022 that alleged the wool shoes the company is known for are misrepresented as environmentally conscious. The judge in the US District Court for the Southern District of New York said the lawsuit takes issue with the company’s methodology of calculating its carbon footprint rather than alleging that the statements were misleading.
“Certainly there is a big risk for all fashion brands, particularly from plaintiffs’ attorneys and class action attorneys who are bringing lawsuits alleging certain claims are misleading or unsubstantiated,” said Dan Jasnow, a partner at ArentFox Schiff who specializes in part on the fashion industry. While the current Green Guides are already a very important resource, Jasnow said, there’s a “thirst for greater clarity” because the murkiness of current standards—or lack thereof—is fueling lawsuits.
Allbirds’ senior sustainability manager Aileen Lerch agreed that more guidance is needed. “‘Sustainability’ is a very broad term, it means ten different things to ten different people,” she said.
Corporate claims about different aspects of sustainability can be confusing to customers as well, Lerch said. “From the brand perspective I’m really excited about continued guidance and clarity about quantification methods as well as how to communicate” about them, she said.
In the meantime, companies are going to have to rely on data to prove that their claims are accurate. “I think it’s important to be more conservative and make sure anything you say is backed up,” said Adore Me’s Morel.
Though demand for sustainable apparel is growing, it’s not usually worth taking a risk when using environmental language in marketing, she said, and it’s important to make sure the legal and environmental operations keep their marketing counterparts updated on how best to present the products.
“What’s right today could be wrong tomorrow, it’s such a fast-paced landscape,” she said.