Life Cycle Information and Policy Implications –
Moderator: Ellen Goodman (Rutgers Law)
How does the law deal with the goals of market efficiency and, possibly competing, shaping consumer preferences in environmentally friendly ways?
Opening thoughts: LCA is complex and uncertain and there are competing methodologies; it may be inherently inappropriate to make a green/greener claim in marketing; nobody has really done LCA of multiple competitors’ products. At the same time, lots of companies are making these claims. And there’s a market for LCA, people believe. What is to be done?
Mary Ann Curran (Director, Systems Analysis Branch, Life Cycle Analysis, EPA)
Discussed variations on the idea: life cycle assessment v. life cycle analysis v. life cycle management (which includes social needs). “Lust-to-dust” analysis looks holistically at multimedium (air, water, solid waste) and multiattributes. Victim of its own success—people are using the term “life cycle” in different ways.
She sees 3 variants: (1) greenhouse gas life cycle analysis. It has the cradle-to-grave component, but only in terms of warming impact. Very true for biofuels. (2) people say they’re looking at product life cycle, but are really looking at end-of-life management. Recycling v. conservation. Nanotech: once the product is used and ends up in the water, we need to figure out its impact. (3) Application of life cycle thinking, like the EPA’s Environmentally Preferable Purchasing—EPA looks cradle-to-grave at product category, but then apply a theory of what needs to be done. So, with paint, they give good marks to paint with low VOCs or recycled cans—a checklist approach. A modified LCA. The reason: the data are so hard to get at to do a full LCA. We need better data.
Tools she’s seen: carbon management (where are carbon or CO2 equivalents released across the life cycle?); comparative risk assessment (used by people interested in exposures, across the product system: where are chemicals released into the environment?); ecological footprint (material analysis in square miles of resource use); net energy balance (are you getting more energy out of the system than you’re putting in—corn ethanol v. gasoline, process inputs in making fuel); exergy (energy use modeled so that it produces work; anything not being used as work is being absorbed by the environment—quantitative, but leap of faith to say there’s an environmental impact); fuel cycle analysis (variation of air emissions); greenhouse life cycle; LCA; material flow (seems like LCA, but differs in looking at particular material, e.g. aluminum as it’s created and enters into the economy; you’re supposed to look at enviro impacts across the way, v. looking at impacts of the product into which the aluminum is incorporated); sustainable development indicators (not precise tool, but a checklist approach of issues to be addressed).
Greenhouse analysis is a good study, but let’s not forget the water and land issues. Message: LCA is the cornerstone of sustainability, though other tools play a part. LCA allows manufacturers to look inward and make improvements, and helps government make policy, but better data is the key.
Rebecca Tushnet (Georgetown Law)
Background: How do LCA issues become questions of advertising law?
When you make a representation in your ads it’s always necessary to ask: What will a reasonable consumer think? A reasonable consumer is moderately skeptical, but believes in specific factual representations, and often believes that there is evidence behind them, so you have to be able to back up your claims. Consumers don’t and won’t know the details—something like assessment v. analysis will be meaningless to them.
In America (and be aware, EU regulates comparative claims much more heavily, so watch out for that), there are three sets of potential challengers:
(1) Government--FTC: Green Guides, guidelines for marketers with examples of what is and isn’t acceptable, currently under review—comments are invited. Carbon neutrality and offsets, for example, are a big issue; LCA fits in too as a new development since the Green Guides were first promulgated.
(2) NAD-arm of Better Business Bureau and Lanham Act; (3) consumer lawsuits.
Some examples of problematic greenish claims: “Animal Care Certified,” “raised without antibiotics,” “degradable,” “environmentally friendly—without mercury.” Those are all misleading, for various reasons.
LCA if done right is a step up: under the caselaw, if your methodology is reasonable, then even if you come out differently under a different methodology and which is better is debatable, you aren’t engaged in false advertising. Do it fairly and in good faith, without cherrypicking or shading the facts, and you can advertise it, even if there’s disagreement. This is why twenty years of litigation between headache remedy makers left competing superiority claims in ads—each advertiser has evidence on its side, and though they can’t all be right none of them are definitively wrong. Caveat: if the FTC or the EPA decides on a method or metric you need to use, you need to use it.
Key concepts to take away: Falsity is not the same as misleadingness. Beware of both. When dealing with FTC or NAD, you need substantiation. And in competitor lawsuits you need substantiation for establishment claims—claims that state or imply scientific backing, which most environmental claims will. Finally, beware “environmentally friendly”—that’s a term that raises regulatory hackles. It may be that good LCA is the only way to be able to make a general “environmentally friendly” claim.
Mario Teisl (University of Maine, Economics)
Labeling can come from different players: NGOs, government agencies; some are based on absolute product differences, others are industry-specific (e.g., fisheries). Information is not a single thing; neither is “the consumer.” There are multiple types, and your information will be targeted for different consumers/values.
Assumption: consumers are confused about LCA because they don’t care or they’re stupid. But that’s not right. 15% of the population is unreachable and will misunderstand regardless of what you do.
What is the purpose of eco-awareness strategy for labels? Labels allow consumers to make comparison across products; not educative in the short run, though there are educational approaches. Labels and ads do give consumers something they didn’t have before: shows what the choices are. Consumers didn’t know and had no incentive to learn before the label. Why tell someone to consume green if there’s no way to implement that when they go to the grocery store?
Are these strategies effective? Depends on your metric. They can (but will not always) change knowledge, attitudes, and behaviors. Evidence on dolphin-safe labeling of tuna, and the Nordic Swan and how it affected paper product sales, shows significant shifts. Companies’ use of the strategies also suggests that they’re effective at least sometimes. But do they translate into environmental change? That’s harder to tell. (Someone might consume more paper if she knows it’s recycled.)
Assume that people do care, but are confused/ignorant. Women are more affected by environmental information; age, income, education effects; social psychology effects—can affect the way people view others and the way they think others view them (status). Choice characteristics: how consumers process info depends on preexisting perceptions of the product or company, which sometimes may not be in a direction the marketer wants.
Stages of choice: buying eggs v. buying cars. People make 2 decisions with cars: what class of vehicle to get—SUV, truck, minivan—99% based on usefulness of vehicle for them, not environmental considerations. Once the class decision has been made, though, decisions among types are affected by environmental information. Quite often environmental benefits don’t cost more there. Info environment makes a difference—won’t research the background of a can of tuna, but when you buy a car you get loads of information—manufacturer, Car & Driver magazine, other sources.
Issue awareness: is the issue close in space, in time, in biological characteristics (we like fuzzy things more than slimy things/biodiversity).
Consumers’ reactions to LCA will not necessarily be what you expect.
Details, source (credibility), and presentation (table, numbers, summary score, whether it’s absolute or relative, graphics) all matter. Whether the information is standardized within or across product classifications is a big deal. Is it mandatory or voluntary? These individual components interact—the negative effect of non having standardized info can be mitigated by the level of detail. Ancillary info: not on the product—(1) info you control and (2) info you don’t control. Government may check your claims, but NGOs/competitors can also take your info and change it. Since most Americans are ignorant of environmental labeling (better history in the EU), when most people don’t have firm beliefs about your product, it’s easy to attack your strategy.
Communicating these characteristics effectively isn’t easy. You can even get a negative reaction—consumers already have preexisting expectations about your product; some consumers will respond negatively to a new environmental message that goes against what they already think about the product. Teisl found this with health and environmental claims—some segment of the population always pushes back against positive product claims. People are inherently skeptical, and the hard sell gets a harder pushback.
Info disclosure is hard. But LCA is hard too, and you’re doing that. It’s worth doing right.
Nutrition labeling clearly affected consumption. Note that we had nutrition labeling before the FDA intervened—it was just nonstandardized and patchy, so consumers couldn’t use it. You can’t just start throwing info out; you need to figure out what people want to know and what they understand. So: keep nutrition panel short. Over time, the FDA added lines because people asked for more. It’s not everything-or-nothing.
Laura Forlano (Yale Law Information Society Project)
New technologies, especially pervasive computing/social media, and their role in environmental sustainability. Human-centered design: find out what people are doing and why, which can explain why corporate policy isn’t getting implemented (why hotels say they don’t replace your towels as a default, but individual room cleaners often do replace your towels even when you hang them up—perhaps they get more tips that way). Can be applied to consumers as well. You can use lead/early adopters to figure out what to do for majority consumers. In LCA, tell the stories of the workers at the plant and the relationship of the plant to the community.
Prototype: A pollution e-sign project, communicating local air quality through wireless devices as they pass by. Another project by Natalie Jerimijenko: a printer queue virus, printing out a tree ring every time one tree’s worth of paper has been used. Same artist: OneTrees, planted a bunch of cloned trees in a bunch of places and looked at environmental impacts on them. Another idea: add barcodes to products linking to information online—can find out whether a company is polluting or using coerced labor.
Q: Secretly environmentally friendly products, blocked by legal/environmental concerns from announcing redesign. Is the balance proper?
My answer: false positives trade off with false negatives most of the time, though there are design improvements like Teisl talked about. I think the standard is right, even though there will always be mistakes.
Q: How to affect decisions on what type of vehicle to buy?
Teisl: Car & Driver doesn’t care; if you get Car & Driver/other information sources like Consumer Reports to pay attention, that may help. Still, a lot of times people have commuting characteristics—carpenters need trucks. You may want to get people out of SUVs into station wagons; even within each class, there’s a relatively wide range of environmental characteristics, though that wasn’t true in the past. Do you have producers change the product, or try to educate consumers? They both work.
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