Creating Order Amidst Food Eco-Label Chaos

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CREATING ORDER AMIDST FOOD
ECO-LABEL CHAOS
JASON CZARNEZKI†
ANDREW HOMAN††
MEGHAN JEANS†††
I. INTRODUCTION
Eco-labels, certifications, and seals of approval serve a variety of
functions including communicating to businesses and consumers the
environmental attributes of a particular product and incentivizing
improvements in production. Eco-labels also provide a basis for
companies to set measurable sustainability goals for sourcing,
improvements, and transparency. As they gain greater traction in the
marketplace, however, there has been a massive proliferation of
labels, certifications, and green seals of approval. This has led to
consumer confusion, inaccurate and misleading claims, and
inconsistent standards.1 A 2009 survey identified about 600 labels
that denote some definition of “environmentally friendly” worldwide,
including more than 80 on products sold in the United States (see
Figure 1 below).2 The U.S. alone has at least 19 eco-labels and
environmental certifications in the food context.3 Consumer demand
for eco-labeled food products has grown in conjunction with
knowledge about pesticides and the potential ill effects from
consumption, as well as consumer concerns over deforestation,
Copyright © 2015 Jason Czarnezki, Andrew Homan & Meghan Jeans.
† Jason J. Czarnezki (A.B., J.D., The University of Chicago) is the Gilbert and Sarah
Kerlin Distinguished Professor of Environmental Law and Executive Director of
Environmental Law Programs at Pace Law School.
†† Andrew Homan (B.A., Johns Hopkins University; M.A., M.Phil., Columbia
University; J.D., Vermont Law School) is a law clerk in Vermont Superior Court.
††† Meghan Jeans (B.A., Colby College; J.D., M.S.E.L. Vermont Law School) is the
Director of Conservation at the New England Aquarium.
1. Juliet Eilperin, Environmental Certification Becoming Increasingly Crowded and
Contested Field, WASH. POST (May 3, 2010), http://www.washingtonpost.com/wp-dyn/content/
story/2010/05/03/ST2010050301057.html?sid=ST2010050301057.
2. Id.
3. DAN VERMEER ET AL., AN OVERVIEW OF ECOLABELS AND SUSTAINABILITY
CERTIFICATIONS IN THE GLOBAL MARKETPLACE 30 (Jay S. Golden ed., 2010), available at
http://center.sustainability.duke.edu/sites/default/files/documents/ecolabelsreport.pdf.

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biodiversity, and fair labor. These concerns have expanded the scope
of eco-labels from the initial health-based focus.
4
This Article
addresses this proliferation of environmental claims through labels
and certifications in the food context—a trend many have argued is
necessary to moving the U.S. national food system toward a
sustainable future.
5
Figure 1: The Proliferation of Eco-Labels
S
OURCE
:
W
ASHINGTON
P
OST
6
The proliferation of eco-labels has led to concerns of
“greenwashing,” and to a lack of transparency, clarity, and trust in
labeling. This exacerbates consumer confusion and can lead to
industry liability.
7
Consumers also desire increased information about
products and improved quality of that information. To ensure that
eco-labels are high quality and successful, markets must be created,
products meeting those standards must be available, and
administrative and certification costs must be addressed.
4. Id. at 29.
5. See, e.g., Jason J. Czarnezki, The Future of Food Eco-Labeling: Organic, Carbon
Footprint, and Environmental Life-Cycle Analysis, 30 S
TAN
.
E
NVTL
.
L.J. 3, 5 (2011) (discussing
“the role and implementation of eco-labeling in promoting a sustainable food system”)
[hereinafter Future of Food].
6. Eco-friendly labeling, W
ASH
.
P
OST
(May 3, 2010), http://www.washingtonpost.com/wp-
dyn/content/graphic/2010/05/03/GR2010050301056.html?sid=ST2010050301057.
7. Rachel Sullivan, What’s in a Label?, 156 ECOS (2010), available at http://www.
ecosmagazine.com/paper/EC156p20.htm.

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Food eco-labels include government sponsored labels (e.g.,
USDA Organic); first-party or self-declared claims (including claims
such as “sustainable,” “all natural,” or “responsibly sourced”); and
labels and seals of approval derived from independent third-party
certifications (e.g., the Marine Stewardship Council seafood
standard). Given the eco-labeling chaos on supermarket shelves,
consumers are “growing weary,”8 thus, both government and private
certifiers have sought out a greater role in the regulatory space.
While consumers now face a plethora of labeling schemes and do not
know which ones to trust, producers must weigh maximizing their
ability to compete in the eco-friendly sector against the potential
liabilities that come with making green marketing claims and the cost
of environmental certification.9
This Article attempts to find order amidst the chaos of food eco-
labels. Part II explores three basic types of eco-labels for food: first-
party, third-party, and those created and/or required by the federal
and state governments. Part III discusses government regulation and
restrictions on labeling. Part IV addresses both sides of the issue by
(i) offering proposals for regulatory reform in order to improve the
clarity, consistency, and credibility of green claims for food products;
and (ii) giving suggestions to the industry to promote more
transparency, accountability, and meaning among green marketing
claims.
II. ECO-LABELING
Not all food eco-labels are created equal. Some are government-
sponsored and/or required (e.g., USDA Organic, country-of-origin
labeling); others are self-declared or “first-party” (e.g., Whole Foods’
“Responsibly Grown” label); and some labels are derived from third-
party independent certifications (e.g., Marine Stewardship Council
seafood labels).
A. First-Party Labels
A major form of voluntary, privately-sponsored labeling consists
of “self-declared” or “first-party” claims, some of which state a single
attribute like “sustainable.” More recently, some labels have made
8. Beth Hoffman, Are Consumers Growing Weary of ‘Eco-Labels?’, FORBES (Jan. 14,
2013, 11:11 AM), http://www.forbes.com/sites/bethhoffman/2013/01/14/are-consumers-growing-
weary-of-eco-labels/.
9. Jason J. Czarnezki, Andrew Homan & Meghan Jeans, Greenwashing & Self-Declared
Seafood Ecolabels, 28 TUL. ENVTL. L.J. 37, 38–39 (2014) [hereinafter Greenwashing].

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environmental claims based on a number of self-created standards. A
self-declared environmental standard “is an environmental claim that
is made—without independent third-party certification—by
manufacturers, importers, distributors, retailers, or anyone else likely
to benefit from such a claim.”10 The proliferation of self-declared eco-
labeling schemes has caused widespread consumer confusion and
skepticism over the veracity of environmental claims. This has lead
many manufacturers and retailers to turn to independent, third-party
entities to certify that environmental product claims are valid.
How businesses define the adjectives used on first-party labels
varies greatly, and the accuracy of these claims may be questionable.
The increase in unverifiable and non-third-party certified eco-labels
can create confusion among consumers. It can also undermine the
value of well-intentioned labeling schemes that seek to highlight more
environmentally friendly options and provide models for
sustainability. As retailers contemplate the development of their own
unique eco-labels, it is important that they understand the legal
obligations, regulatory hurdles, and potential liabilities associated
with self-declared eco-labeling (discussed below in Part III).
B. Third-Party Standards and Certifications
The most widely adopted food label in the U.S. is the USDA
Organic label, which has certified 35,000 products and companies.11
Other prominent labels include the Rainforest Alliance Sustainable
Agricultural Network, with 23,929 certifications;12 Fairtrade, with
5,246 products and company certifications; and the Marine
Stewardship Council,13 with 2,643 product certifications.14 “The
10. Atsuko Okubo, Environmental Labeling Programs and the GATT/WTO Regime, 11
GEO. INT’L ENVTL. L. REV. 599, 608 (1999).
11. VERMEER, supra note 3, at 30.
12. Id. “The Rainforest Alliance certification is a conservation tool whereby an
independent, third party awards a seal of approval guaranteeing consumers that the products
they are buying are the result of practices carried out according to a specific set of criteria
balancing ecological, economic, and social considerations. The Sustainable Agriculture Network
(SAN), the global parent, awards the North America-based Rainforest Alliance Certified
ecolabel to farms, not to companies or products.” Id. at 31.
13. Id. at 30. “Unilever and the World Wildlife Fund partnered in 1997 to create a marine-
based certification. Today, the certification is known as MSC certification or the Marine
Stewardship Council (MSC). The organization is a nonprofit organization that has developed a
global environmental standard for sustainable fishing. Some of the standards measured by
MSC include the maintenance of a sustainable population level and the minimization of
environmental impacts. Well-managed fisheries that are independently certified as meeting
these standards may use the blue MSC ecolabel on seafood from their fishery.” Id. at 32.
14. Id. at 30.

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agricultural eco-labeling space has grown from a focus on the safety
of consumable products to include a wider range of issues spanning
environmental and social sectors.”15 This Part describes two third-
party certification labels/markets (organic food and seafood), as well
as the challenges they face.16
1. U.S.D.A. Organic: A Federal Standard17
The past decade has seen both increased interest in food labeling
and increased prominence of the organic market.18 Under the
Organic Foods Production Act of 1990 (OFPA) and the National
Organic Program (NOP), the U.S. government creates production,
handling, and labeling standards for organic agricultural products.19
In the United States and abroad, environmental labeling for food is
gaining wide interest. Organic food labeling in the United States has
become the dominant environmental label, earning great cachet with
consumers. Additionally, the country of origin label (discussed
below)—created originally for consumer protection reasons—can
serve to some degree as a proxy for information about “food miles.”20
The organic food market is flourishing. People want chemical-
free foods for personal health and environmental reasons. In light of
the economic benefits of organic production—organic products
generally sell for much more than conventional ones—the modern
organic production and distribution system is now dominated by
large-scale “industrial organic” or “big organic” producers. With
large scale production, even organic, comes increased greenhouse gas
emissions and questionable agricultural methods. Yet organic
production does yield food produced and processed in a chemical free
environment, which is in high demand. Organic food has almost
quadrupled its market share in the last decade, and sales of organic
food sales have grown from $1 billion in 1990 to over $20 billion
15. Id. at 33.
16. There are many other such labels like Demeter’s Biodynamic and Certified Humane.
17. This section on U.S.D.A. Organics and the latter section on COOL labeling relies on
Jason J. Czarnezki & Elena M. Mihaly, The Food Statutes, in F
OOD, AGRICULTURE AND
ENVIRONMENTAL LAW 223 (Mary Jane Angelo, Jason J. Czarnezki & William S. Eubanks II
eds., 2013) [hereinafter The Food Statutes].
18. See Jason J. Czarnezki, Food, Law & the Environment: Informational and Structural
Changes for a Sustainable Food System, 31 UTAH ENVTL. L. REV. 263, 270, 275 (2011)
(discussing the state of the organic food market) [hereinafter Food, Law & the Environment];
Future of Food, supra note 5, at 14–30 (discussing several food labeling programs and the
growth of the organic food market).
19. Organic Foods Production Act of 1990, 7 U.S.C. §§ 6501–22 (2012).
20. Future of Food, supra note 5, at 18.

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today.21 None of this might have happened without a regulatory
model creating a value-added food label like “organic.”
Individuals buy organic products to promote sustainable and
chemical-free agriculture, as well as to keep their bodies free of
synthetics and pesticides. The organic standard “emphasizes the use
of renewable sources, land management that maintains natural soil
fertility, water conservation, rich biodiversity, and long term
sustainability.”22
OFPA establishes a national organic certification program where
agricultural products may be labeled as organic if produced and
handled without the use of synthetic substances. The program
prohibits using synthetic fertilizers, administering growth hormones
and antibiotics in livestock,23 and adding synthetic ingredients during
processing.24 However, exceptions exist, and some non-agricultural
products and synthetics can be used on organic produce if they are on
the National List.25 Such products include waxes (carnauba and wood
rosin) on organic fruit and fruit products, ethylene for postharvest
ripening of tropical fruit and citrus degreening, and citric acid and
ascorbic acid for fresh-cut fruits.26 Chlorine, the most commonly used
synthetic for sanitation of fruit and vegetable surfaces, is also on the
National List.27
In addition to agricultural products and synthetics, agricultural
practices are also regulated under the OFPA. Farmers must follow
an organic plan approved by an accredited certifying agent as well as
the producer and handler of the product.28 While OFPA creates
21. Agricultural Marketing Resource Center, ORGANIC FOOD TRENDS PROFILE
(November 2013), http://www.agmrc.org/markets__industries/food/organic-food-trends-profile/.
22. Anne Plotto & Jan A. Narciso, Guidelines and Acceptable Postharvest Practices for
Organically Grown Produce, 41 HORTSCIENCE 287, 287 (2006) (citing 7 C.F.R. § 205.2 (2006)).
23. National Organic Program; Access to Pasture (Livestock), 75 Fed. Reg. 7154, 7162
(Feb. 17, 2010) (to be codified at 7 C.F.R. pt. 205), available at http://www.ams.USDA.gov/
AMSv1.0/getfile?dDocName=STELPRDC5082838.
24. 7 U.S.C. §§ 6508(b)(1); 6509(c)(3); 6510(a)(1)(2012). See also Plotto & Narcisco, supra
note 22, at 287 (citing 7 C.F.R. § 205.105 (2006)) (“Food must be produced without synthetic
chemicals, except for those specifically allowed by regulations, and without substances
(nonsynthetic and nonagricultural) prohibited by regulations, including no sewage sludge,
ionizing radiation or bioengineering . . . .”).
25. CATHERINE GREENE ET AL., EMERGING ISSUES IN THE U.S. ORGANIC INDUSTRY 2
(June 2009), available at http://www.ers.USDA.gov/media/155923/eib55_1_.pdf.
26. Plotto & Narciso, supra note 22, at 288. See National List of Allowed and Prohibited
Substances, 7 C.F.R. §§ 205.605-.606 (2014) (listing nonagricultural substances that may be used
in organic products).
27. Id. at 290 (citing 7 C.F.R. § 205.605(b) (2006)).
28. 7 U.S.C. §§ 6504–05 (2012).

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process-based standards, it does not create chemical residue
standards or require tests for actual chemical content in food, and
also does not assess overall land use practices. Thus, “certified
organic” labeling informs consumers about the food production
process. While organic foods are likely to have fewer chemicals than
their conventional counterparts, organic labeling does not directly
describe food quality or indicate a lack of land degradation.29
The NOP also has detailed record-keeping requirements to meet
the production process-based standards of the OFPA.30 Due to the
record-keeping requirements and detailed standards, third-party
certifiers work with state and federal governments to oversee organic
certification.
Despite meager funding and a small staff, the National Organic
Program operates by accrediting nearly 100 third-party certifying
agencies, who in turn provide the oversight required to certify
farms and businesses as organic. Since standards cover the
materials and processes used for both growing and processing food,
not only does NOP regulate which pesticides a farmer may use, it
also specifies which cleaning solution a processor may use to clean
his equipment.31
Small farmers who gross less than $5,000 annually and only sell
directly to consumers (e.g., via farmers markets and family farm
stands) can avoid the certification process by simply signing a
declaration of compliance stating that they comply with organic
standards.32 However, if these farmers sell any of their products
through conventional distribution channels, they may only use the
29. See Michelle T. Friedland, You Call That Organic?–The USDA’s Misleading Food
Regulations, 13 N.Y.U. ENVTL. L.J. 379, 384–87 (2005) (establishing that the NOP is process-
based rather than product-based). However, “[b]ecause food produced in accordance with the
NOP regulations will not be intentionally sprayed with pesticides or intentionally grown or
raised using genetically engineered seed or other inputs, the likelihood of the presence of
pesticide residue or genetically engineered content will clearly be lower than in foods
intentionally produced with pesticides and genetic engineering techniques. But organic food
will not be free of such contamination. Evidence clearly indicates that both pesticides and
genetically engineered plant materials often drift beyond their intended applications, and
organic food, like any food, may be accidentally contaminated.” Id. at 389–99.
30. Plotto & Narciso, supra note 22, at 287–88 (citing 7 C.F.R. §§ 205.103, 205.201 (2006)).
31. JILL RICHARDSON, RECIPE FOR AMERICA: WHY OUR FOOD SYSTEM IS BROKEN AND
WHAT WE CAN DO TO FIX IT 63 (2009).
32. Kate L. Harrison, Organic Plus: Regulating Beyond the Current Organic Standards, 25
PACE ENVTL. L. REV. 211, 219 (2008) (citing Andrew J. Nicholas, As the Organic Industry Gets
Its House in Order, the Time Has Come for National Standards on Genetically Modified Foods,
15 LOY. CONSUMER L. REV. 277, 285 (2003)).

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term “organic,” and may not use the term “certified organic” or the
USDA organic label on products without also obtaining official
certification.33 The certification process can be expensive and time-
consuming.34
There is a concern that small farmers may have trouble coming
up with the funds to receive organic certification, and may also lack
the resources to fully promote and market their chemical-free and
sustainably grown products.35 In recognition of the costs of organic
certification for small farmers, sliding scales for payment and
subsidization are the norm.36 Organic certification fees, based on total
sales, are usually below $1,000, except for large processors with far
greater sales.37 Costs are actually 75% less, after government
reimbursement, if a state participates in the federal cost-share
assistance program discussed below. But, perhaps due to sliding scale
differences (and thus fee differences), it has been claimed that
organic certifiers largely ignore economic issues pertaining to small-
scale farmers, and place a greater emphasis on enlisting larger
producers.38
The Agricultural Management Assistance Organic Certification
Cost Share Program, established in 2001, authorizes cost share
assistance to producers of organic agricultural products in a number
of states. This program received $1.45 million in funding in 2010.39
The National Organic Certification Cost Share Program, re-
established as a part of the 2008 Farm Bill, authorizes cost share
assistance to producers and handlers of organic agricultural products
in each state. Nearly every state participates. The states will
reimburse each eligible producer or handler up to 75% of its organic
33. Id.
34. Id.
35. RICHARDSON, supra note 31, at 63–64.
36. Ariana R. Levinson, Lawyers as Problem-Solvers, One Meal at a Time: A Review of
Barbara Kingsolver’s Animal, Vegetable, Miracle, 15 WIDENER L. REV. 289, 294 (2009).
37. See e.g., 2013 Certification Fee Determination, Vermont Organic Farmers, LLC, http://
nofavt.org/programs/organic-certification/application-deadline-and-fees (providing the fee
schedule for Vermont Organic Farmers).
38. Denis A. O’Connell, Shade-Grown Coffee Plantations in Northern Latin America: A
Refuge for More than Just Birds & Biodiversity, 22 UCLA J. ENVTL. L. & POL’Y 131, 147 (2004)
(citing RUSSELL GREENBERG, CRITERIA WORKING GROUP THOUGHT PAPER 4 (2001)).
39. USDA, U.S.D.A. AMS NATIONAL ORGANIC PROGRAM COST SHARE PROGRAMS
2010 REPORT TO CONGRESS 1 (2010), available at
http://www.ams.USDA.gov/AMSv1.0/getfile?dDocName=
STELPRDC5084541&acct=nopgeninfo.

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certification costs, not to exceed $750.40 In fiscal year 2008, Congress
allocated $22 million—on a one-time basis—for states under this
program, which is available until the funds are exhausted.41 Thus, at
least in the short term, significant cost assistance exists. In addition to
making organic certification more affordable for small farmers, states
are also providing property tax rebates for farmers who convert from
conventional to organic farming practices, and attempting to lower
the tax burden on small farmers.42
Even if the costs of organic certification are expensive, though,
they are not prohibitive. The real barriers to entry may be the costs
of monitoring and record-keeping. For example, applicants for
certification must keep accurate post-certification records for five
years concerning the production, harvesting, and handling of
agricultural products that are to be sold as organic.43
Previously, some expressed concerns that organic standards
would somehow limit imports and adversely affect the global food
market.44 However,
The U.S. National Organic Program (NOP) streamlined the
certification process for international as well as domestic trade
when it was implemented in 2002. Organic farmers and handlers
anywhere in the world are permitted to export organic products to
40. Press Release, U.S.D.A., U.S.D.A. Amends National Organic Certification Cost
Assistance Program (Nov. 7, 2008), http://www.ams.USDA.gov/AMSv1.0/ams.fetchTemplate
Data.do?template=TemplateU&navID=Newsroom&page=Newsroom&resultType=
Details&dDocName=STELPRDC5073574&dID=103098&wf=false&description=USDA+Ame
nds+National+Organic+Certification+Cost+Assistance+Program&to.
41. U.S.D.A., supra note 39, at 1. “To prevent duplicate assistance payments, producers
participating in the AMA program are not eligible to participate in the producer portion of the
National program.” Id.
42. See, e.g., Woodbury County Organics Conversion Policy, 2005 http://www.
woodburyiowa.com/attachments/article/42/Organics%20Conversion%20Policy.pdf (“Woodbury
County will grant up to $50,000 each year in real property tax rebate incentives for farms that
convert from ‘conventional’ farming techniques that use pesticides to ‘organic’ farming that
complies with the U.S.D.A. ‘National Organic Program’ Standards and Regulations”); H.B.
1350, 144th Gen. Assemb., Reg. Sess. (Ga. 1998) (amending Code Section 48-5-41 of the Official
Code of Georgia Annotated, relating to exemptions from ad valorem taxation, so as to provide
for an exemption for fruit or nut trees grown in this state and remaining in the possession of a
producer of fruit or nuts, trees grown in this state for sale as Christmas trees and remaining in
the possession of the producer, etc.).
43. North Carolina Department of Agriculture and Human Services, How Do I Become a
Certified Organic Grower?, http://www.ncagr.gov/markets/commodit/ horticul/ncorganics/
How%20do%20I%20become%20a%20certified%20organic%20grower.pdf.
44. See UNIV. OF WISCONSIN-MADISON: CTR FOR INTEGRATED AGRIC. SYS., TOWARDS A
SUSTAINABLE AGRICULTURE,
http://www.cias.wisc.edu/curriculum/modV/secd/modVsecD.htm.

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the United States if they meet NOP standards, along with other
regulatory standards, and are certified by a public or private
organic certification body with USDA accreditation. In 2007,
USDA accredited groups certified 27,000 producers and handlers
worldwide to the U.S. organic standard, with approximately 16,000
in the United States and 11,000 in over 100 foreign countries.
Farmers and handlers certified to NOP standards are most
numerous in Canada, Italy, Turkey, China, and Mexico[.]45
OFPA monopolizes the use of the term “organic,” requiring all
products labeled as “organic” to be certified through government
approved organizations that comply with all OFPA regulations under
NOP.46 Under one view, it is effective to have a single government
label bringing singular meaning to a word developing significant
cachet in food markets.
The OFPA, from the point of view of regulatory design and
administrative law, was strikingly innovative . . . . The OFPA is a
marketing-oriented statute designed to regularize what was at the
time a potentially confusing Babel of competing standards with an
official federal “organic” label. Not only was a federal label
thought useful in promoting consumer confidence in the growing
organic industry within the United States, but it was also viewed as
helpful in facilitating trade in “a potentially lucrative international
organic market.”47
Despite this approach, consumer confusion remains regarding the
meaning of “organic.”
What counts as organic? For many, the organic label means
healthy, environmentally friendly, safe, and pesticide-free. While in
some cases these characteristics are true, none are elements of the
term’s legal definitions. Moreover, not all organics are created
equally. The NOP created under the OFPA establishes a four-tiered
labeling system for organic foods.48
45. GREENE ET AL., supra note 25, at 8.
46. 7 U.S.C § 6505(a)(1)(A) (2012).
47. Donald T. Hornstein, The Road Also Taken: Lessons from Organic Agriculture for
Market- and Risk-Based Regulation, 56 DUKE L.J. 1541, 1549–50 (2007) (quoting JEAN M.
RAWSON, CONG. RESEARCH SERV., ORGANIC AGRICULTURE IN THE UNITED STATES:
PROGRAM AND POLICY ISSUES 3 (2006)).
48. 7 C.F.R. § 205.301 (2014). In addition to looking for “organic” labeled foods,
consumers can look at five-digit PLU codes. Organic foods all start with 9. INT’L FED’N FOR
PRODUCE STANDARDS, PRODUCE PLU CODES: A USER'S GUIDE – 2014, 7 (2014), available at
http://www.plucodes.com/docs/Users_Guide.pdf.

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Table 1: Categories of USDA Organic Foods
Content of Organic
Ingredients49
Organic Seal? Permitted Label
Phrases
100% Yes “100% Organic”
95%-99% Yes “Organic”
70%-94% No “Made with Organic
Ingredients”
69% or less No Can only list organic
ingredients
First, a product can be labeled “100 percent organic” and carry
the USDA and private certifying agent seals if it contains 100%
organically produced ingredients, as defined by OFPA (e.g., without
synthetic substances).50 Second, a product must contain at least 95%
organic ingredients to be labeled simply “organic” and use the USDA
and private certifying agent seals.51 Third, a product with at least 70%
organically produced ingredients (or perhaps better stated, with only
70% organic ingredients) can be labeled “made with organic
ingredients” and carry the seal of a private certifying agent.52 For
products containing less than 70% organic ingredients, organic
ingredients may be listed on the label, but neither the word “organic”
nor any seal can be used.53 Thus, consumers of organic products
should look for the USDA seal over the sole seal of other certifying
agents, including state governments, because it guarantees at least
95% organic content. Although individual U.S. states have the right
to seek approval of stricter standards, to date, none have exercised
this right.
Two key and related questions arise in determining the
effectiveness of organic labeling. First, when a consumer sees the
word “organic” on a label, are the different meanings of organic clear
to the average consumer? And second, does “certified organic” mean
what consumers think it means? Potentially adding to the confusion,
agribusiness has sought watered-down definitions of “organic” so that
49. 7 C.F.R. § 205 302 (calculating the percentage of organically produced ingredients by
weight or fluid volume).
50. 7 C.F.R. §§ 205.301(a), 205.303 (2014). OFPA defines “synthetic” as “a substance that
is formulated or manufactured by a chemical process or by a process that chemically changes a
substance extracted from naturally occurring plant, animal, or mineral sources, except that such
term shall not apply to substances created by natural occurring biological processes.” 7 U.S.C. §
6502(12) (2012); 7 C.F.R. § 205.2 (2014).
51. 7 C.F.R. §§ 205.301(b), 205.303 (2014).
52. 7 C.F.R. § 205.301(c) (2014).
53. 7 C.F.R. § 205.301(d) (2014).

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it can reap the economic benefits of the growing popularity of organic
products. For example, the Secretary of Agriculture—lobbied by
industry to loosen the standard for organic—created rules allowing
non-organic feed to be used in dairy cattle herds that were
transitioning to an organic diet, and permitting the use of synthetic
substances in the handling of products labeled as organic.54
The U.S. Court of Appeals for the First Circuit in Harvey v.
Veneman declared these lobbied rules in contravention of the plain
language of the OFPA.55 Despite this, producers can use chemicals in
the production and handling stages if the synthetics are not harmful
and are necessary because no natural substitute exists.56 For example,
carbon dioxide and ethylene—as previously mentioned—can be used
in post-harvest activities like ripening.57 That said, and despite
attempts to the contrary, current NOP rules continue to ban
genetically modified organisms, sewage sludge, and irradiation in
certified organic foods.58 NOP rules also exclude poultry, eggs, or
milk from animals raised with antibiotics or growth hormones.
2. Seafood
With regards to seafood, the United Nations’ Food and
Agriculture Organization (FAO) estimates that there are currently
over 400 standards, certifications, and labels related to wild fisheries
and aquaculture. While not a standard-setting body themselves, the
FAO published sets of guidelines for seafood certifications and eco-
labeling schemes that provide minimum substantive and procedural
criteria, which certification schemes must incorporate to be deemed
credible. These criteria are encapsulated in the Code of Conduct for
Responsible Fisheries Management; the Guidelines for the
Ecolabelling of Fish and Fishery Products from Marine Capture
Fisheries, 2009; Guidelines for the Ecolabelling of Fish and Fishery
Products from Inland Capture Fisheries, 2011; and the Technical
Guidelines for Aquaculture Certification, 2011.59 It is important to
54. Sarah Flack & Lisa McCrory, Transition to Certified Organic Milk Production (June
24, 2012), http://www.extension.org/pages/18552/transition-to-certified-organic-milk-production
#.VPdsj_l4rYg.
55. Harvey v. Veneman, 396 F.3d 28, 39, 44 (1st Cir. 2005).
56. 7 U.S.C. § 6517 (2012).
57. 7 C.F.R. § 205.605(b) (2014).
58. Friedland, supra note 29, at 384, 388. The regulations also prohibit most uses of
ionizing radiation, the application of sewage sludge as fertilizer, and the use of drugs or
hormones to promote growth in livestock. 7 C.F.R. §§ 205.105(f)–(g), 205.237(b)(1) (2014).
59. FISHERIES & AQUACULTURE DEP’T, FOOD & AGRIC. ORG. OF THE UNITED

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note that the Code of Conduct and guidelines were not designed to
serve as independent certification standards since they do not meet
the FAO’s own definition of a “standard for certification.”
Additionally, they lack the measurable performance indicators
required for consistent and meaningful performance-based
certification. Nevertheless, the guidelines have become the
internationally accepted baseline for credible seafood certifications.60
For many, the FAO guidelines are regarded as a floor and not a
ceiling.61 In other words, certifications should look to exceed these
criteria to create standards that drive meaningful improvements over
current performance levels. That said, the recent emergence of
standards claiming to be “FAO-based” or “FAO-compliant” has
prompted some concern and a movement to evaluate the veracity of
these claims. In particular, concerns have been raised that “FAO-
based” schemes do not meet all of FAO’s criteria for credible
certification.62 Additionally, other certification schemes have claimed
to be fully consistent with the FAO’s guidelines.63 Without
independent benchmarking, however, these claims may not be
accurate. Indeed, any certification claiming to be consistent with the
FAO guidelines must, at a minimum, address the guidelines in their
entirety. Within the guidelines, there are several elements that are
particularly critical and form the core of any credible certification
scheme. These elements require that a standard be transparent and
multi-stakeholder;64 include relevant, measurable, and objective
criteria;65 maintain impartiality and independence;66 incorporate
processes for complaints and appeals;67 and include mechanisms to
NATIONS, FAO GUIDELINES FOR THE ECOLABELLING OF FISH AND FISHERY PRODUCTS
FROM MARINE CAPTURE FISHERIES, REVISION 1 (2009) [hereinafter MARINE FISHERIES];
FISHERIES & AQUACULTURE DEP’T, FOOD & AGRIC. ORG. OF THE UNITED NATIONS, FAO
GUIDELINES FOR THE ECOLABELLING OF FISH AND FISHERY PRODUCTS FROM INLAND
CAPTURE FISHERIES (2011); FISHERIES & AQUACULTURE DEP’T, FOOD & AGRIC. ORG. OF
THE UNITED NATIONS, FAO TECHNICAL GUIDELINES ON AQUACULTURE CERTIFICATION
(2011) [hereinafter AQUACULTURE].
60. MARINE FISHERIES, supra note 59, at princ. 2.14; AQUACULTURE ¶¶ 13–16.
61. ENVTL. LAW INST., SEAFOOD CERTIFICATION BASED ON FAO GUIDELINES AND
CODE OF CONDUCT: A CREDIBLE APPROACH? 2 (2012).
62. Id. at 1.
63. Id. at 2.
64. MARINE FISHERIES, supra note 59, at princ. 2.4, 45, 54; AQUACULTURE ¶ 76.
65. MARINE FISHERIES, supra note 59, at princ. 141–43; AQUACULTURE ¶¶ 161–66.
66. MARINE FISHERIES, supra note 59, at princ. 73, 116; AQUACULTURE ¶ 17d.
67. MARINE FISHERIES, supra note 59, at princ. 82–84, 134, 147–48; AQUACULTURE ¶ 167.

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facilitate learning and continual improvement.68
C. Mandatory Labeling
Both federal and state governments have mandatory labeling
requirements for food. For example, at the federal level, the United
States has enacted country of origin labeling (COOL) legislation that
requires retailers to inform consumers about the source of certain
foods. At the state level, the State of Vermont has passed GMO
labeling legislation—the first of its kind. In addition, a mandatory
federal seafood certification process has been proposed.
1. Country of Origin Labeling
Country of origin labeling (COOL) requires that a food product
notify consumers of its source location.69 While the underlying
rationales for COOL in the United States are improving the safety of
foreign goods and economic protectionism for domestic products,
COOL also allows consumers to choose food products that did not
travel so far to market and thus may have a lower carbon footprint
(i.e., lower food miles). Also, COOL may provide implicit
information to buyers. Educated consumers may be able to infer, for
example, whether produce was grown out of season in a greenhouse
or came from an unsustainable or depleted fishery.
COOL requirements were enacted in the United States under
the Farm Security and Rural Investment Act of 2002 (better known
as the 2002 Farm Bill)70 and its implementing regulations.71 COOL
was then amended under the Food, Conservation and Energy Act of
2008 (the 2008 Farm Bill).72
Despite objections to COOL by powerful producers and
retailers, the idea received much support from consumer and product
safety organizations.73 Under the American COOL law, retailers,
such as grocery stores, supermarkets, and club warehouse stores, must
provide customers with information regarding the source of certain
68. MARINE FISHERIES, supra note 59, at princ. 22, 27, 40; AQUACULTURE ¶¶ 18, 40.
69. For a discussion of COOL, see generally Peter Chang, Country of Origin Labeling:
History and Public Choice Theory, 64 FOOD & DRUG L.J. 693 (2009); Anastasia Lewandoski,
Legislative Update: Country-of-Origin Labeling, 9 SUSTAINABLE DEV. L. & POL’Y 62 (2008).
70. Farm Security and Rural Investment Act of 2002, Pub. L. No. 107-171, § 10816, 116
Stat. 134, 533 (codified as 7 U.S.C. § 1638 et seq. (2006)).
71. 7 C.F.R. pt. 60, 65. (2014).
72. Food, Conservation, and Energy Act of 2008, Pub. L. No. 110-234, § 11002, 122 Stat.
923, 1352–54 (codified as 7 U.S.C. § 1638 et seq. (2012)).
73. Chang, supra note 69, at 702.

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foods.74 Food products subject to the legislation currently include
“covered commodities,” such as cut and ground meats (beef, veal,
pork, lamb, goat, and chicken); wild and farm-raised fish and
shellfish; fresh and frozen fruits and vegetables; nuts (peanuts,
pecans, and macadamia nuts); and ginseng.75
There are four labeling categories to indicate a product’s source:
(1) United States origin exclusively; (2) origin and production entirely
outside the United States; (3) products of the United Stated and non-
United States that have combined origin; and (4) products of blended
origin.76 Difficulties arise in designating the country of origin because
many food products today are produced in multiple countries,
particularly meats. For example, beef might come from a cow that
was born and fed in Canada, but slaughtered and processed in the
United States. Similarly, products from several countries often are
mixed, such as for ground beef. For “covered” red meats and
chicken, the COOL law:
 Permits the U.S. origin label to be used only on items
from animals that were exclusively born, raised, and
slaughtered in the United States;
 Permits meat or chicken with multiple countries of origin
to be labeled as being from all of the countries in which
the animal may have been born, raised, or slaughtered;
 Requires meat or chicken from animals imported for
immediate U.S. slaughter to be labeled as from both the
country the animal came from and the United States;
 Requires products from animals not born, raised, or
slaughtered in the United States to be labeled with their
correct country(ies) of origin; and
 Requires that labels for ground meat and chicken
products list all countries of origin, or all “reasonably
possible” countries of origin.77
These meat-labeling requirements have proven to be quite
controversial because of the steps that U.S. feeding operations and
74. Agric. Mktg. Serv., Country of Origin Labeling, U.S.D.A, (Sept. 9, 2014),
http://www.ams.USDA.gov/AMSv1.0/Cool.
75. Id.; 7 C.F.R. pt. 60.105, 65.135 (2014).
76. C. Parr Rosson, III & Flynn J. Adcock, The Potential Impacts of Mandatory Country-
of-Origin Labeling on U.S. Agriculture, in INTERNATIONAL AGRICULTURAL TRADE DISPUTES:
CASE STUDIES IN NORTH AMERICA 38 (Andrew Schmitz et al. eds., 2005).
77. 7 C.F.R. § 65.300(e)–(f) (2014); REMY JURENAS, CONG. RESEARCH SERV.,
COUNTRY-OF-ORIGIN LABELING FOR FOODS 6 (2010), available at http://assets.opencrs.com/
rpts/RS22955_20100715.pdf.

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packing plants need to adopt to segregate, hold, and slaughter
foreign-origin livestock from U.S. livestock.78 The “catch-all” label
(see second bullet, above) was a favorite of many meat processors
and retailers, even on products that would qualify for the U.S.-only
label, because it was the easiest requirement to meet.79 In August
2008, after objections from COOL supporters that the label would be
overused and thus undermine the intent of COOL—to distinguish
between U.S. and non-U.S. meats—a final rule clarified the “multiple
countries of origin” language.80 The rule stated that meats derived
from both U.S. and non-U.S. origin animals may carry a mixed-origin
claim (e.g., “Product of the U.S., Canada, and Mexico”), but that the
mixed-origin label cannot be used if only U.S.-origin meat was
produced on a production day.81
To pacify continued concerns that the COOL label’s purpose was
being evaded, Secretary of Agriculture Tom Vilsack asked industry
representatives in a February 2009 letter to voluntarily provide
additional information. He stated that:
Processors should voluntarily include information about what
production step occurred in each country when multiple countries
appear on the label. For example, animals born and raised in
Country X and slaughtered in Country Y might be labeled as ‘Born
and Raised in Country X and Slaughtered in Country Y.’82
For perishable agricultural commodities—ginseng, peanuts,
pecans, and macadamia nuts—retailers may only claim U.S. origin if
they were exclusively produced in the United States.83 For farm-
raised fish and shellfish, a U.S.-labeled product must be derived
exclusively from fish or shellfish hatched, raised, harvested, and
processed in the United States. Wild fish and shellfish must be
derived exclusively from those either harvested in U.S. waters or by a
U.S. flagged vessel, and processed in the United States or on a U.S.
78. JURENAS, supra note 77, at 6.
79. Id.
80. Mandatory Country of Origin Labeling of Beef, Pork, Lamb, Chicken, Goat Meat,
Perishable Agricultural Commodities, Peanuts, Pecans, Ginseng, and Macadamia Nuts, 73 Fed.
Reg. 45106 (Aug. 1, 2008).
81. JURENAS, supra note 77, at 6 (citing Agric. Mktg. Serv., Country of Origin Labeling
(COOL) Frequently Asked Questions, U.S.D.A (September 26, 2008),
http://www.ams.USDA.gov/AMSv1.0/getfile?dDocName=STELPRDC5071922).
82. Letter from Thomas Vilsack, Secretary, U.S.D.A.., to Industry Representatives (Feb.
20, 2009), available at http://www.USDA.gov/documents/0220_Industry LetterCOOL.pdf.
83. 7 C.F.R. § 65.300(g) (2014).

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vessel.84 Also, labels must differentiate between wild and farm-raised
seafood.85
2. Vermont GMO Labeling
In May 2014, Vermont Governor Peter Shumlin signed into law
an “act relating to the labeling of food produced with genetic
engineering.”86 Supported by a coalition of public interest groups and
businesses, Vermont’s new law—which will go into effect on July 1,
2016—serves as a model of mandatory eco-labeling in two different
ways. First, it requires that food sold in retail stores in Vermont be
labeled “as produced entirely or in part from genetic engineering” if
it is “entirely or partially produced with genetic engineering.”87
Second, the law prohibits foods that are defined as “produced with
genetic engineering” from bearing the label “natural” or a variant
thereof.88 Vermont’s law essentially serves as a mandatory reverse
eco-label, allowing consumers to identify and potentially avoid foods
produced with genetic engineering.
The advantage of Vermont’s labeling scheme is that unlike most
eco-labeling, the label reduces liability and cost rather than increasing
it. For instance, if the manufacturer of a processed food wishes to
label the food as “GMO Free,” it must bear the costs not only of
more expensive ingredients, but also of third-party certification, and
it must take on the risk of potential liabilities due to product
contamination.89 On the other hand, a producer of processed foods
that either knows that some of its ingredients are produced with
genetic engineering, or likely to be produced with genetic
engineering, can simply include the required language on its
packaging and comply with the law.
Proponents of the law claim that it serves the public’s “right to
know” what is in its food. Vermont’s law is not without it its critics,
however. Shortly after Governor Shumlin signed the bill into law,
84. 7 C.F.R. 60.133 (2014).
85. 7 C.F.R. 60.200(d) (2014).
86. Several other states have passed similar laws but none have definite effective dates
because they require “triggers”–their effective dates are connected with the passage of
analogous laws in other states.
87. VT. STAT. ANN. tit. 9, § 3043(a)(2) (West 2016).
88. Id. § 3043(c).
89. Jeremy Bernfeld & Eliza Barclay, Bracing For A Battle, Vermont Passes GMO
Labeling Bill, NAT’L PUB. RADIO (Apr. 24, 2004), http://www.npr.org/blogs/thesalt/
2014/04/24/306442972/bracing-for-a-battle-vermont-passes-gmo-labeling-bill (discussing GMO
free labeling and how onerous the sourcing processes are).

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industry trade groups sued the state, asserting that the law violated
the U.S. Constitution.90 Their complaint argues that the law is
preempted, that it violates the dormant Commerce Clause, and that it
violates the First Amendment.91 Proponents counter that federal
preemption does not apply because the federal regulation of
genetically engineered foods, and food labeling, does not expressly
preempt or occupy the field.92 This case is still pending. The Second
Circuit Court of Appeals, upholding a similar Vermont law that
required labels on products containing trace amounts of mercury,
held that Vermont’s regulation of a product label did not violate the
dormant Commerce Clause.93
The most hotly debated question regarding Vermont’s new law is
whether it unconstitutionally burdens commercial speech.
Commentators differ on whether federal courts should apply the
Central Hudson test or the more deferential Zauderer test.94 Central
Hudson applies an intermediate level of scrutiny95 to mandatory
labels and requires that a labeling law advance a “substantial
government interest.”96 Zauderer applies when the purpose of a label
is to alleviate “consumer confusion” and requires that the label serve
a legitimate government interest.97 If Vermont’s labeling law survives
scrutiny in federal court, the motivation to avoid the reputation-
harming mandatory label could create a category of food that
occupies a place between conventional and organic foods.
90. E.g., Grocery Mfrs. Ass’n, et al. v. Sorrell, et al., No. 5:14-cv-00117, 2014 WL 2965321,
7 (D.Vt. June 12, 2014).
91. Id. at 55, 79, 85.
92. Laura Murphy et al., More than Curiosity: The Constitutionality of State Labeling
Requirements for Genetically Engineered Foods, 38 VT. L. REV. 447, 523 (2013).
93. Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104 (2d Cir. 2001).
94. See Murphy et al., supra note 92, at 514–15 (explaining the court in Zauderer set forth
a more deferential test for disclosure requirements than for other forms of speech regulation).
95. Central Hudson Gas & Elec. Corp. v. Public Service Commission of New York, 447
U.S. 557, 573 (1980) (Blackmun, J., concurring) (“Under this four-part test a restraint on
commercial communication . . . is subject to an intermediate level of scrutiny[.]” (internal
quotations omitted)).
96. Central Hudson Gas, 117 U.S. at 566, 569.
97. See Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S.
626, 651, 658 (1985) (“[W]e have emphasized that because disclosure requirements trench much
more narrowly on an advertiser’s interest than do flat prohibitions on speech, ‘warning[s] or
disclaimer[s] might be appropriately required . . . in order to dissipate the possibility of
consumer confusion or deception.’”) (quoting In re R.M.J., 455 U.S. 191, 201 (1982))); see
generally Murphy et al., supra note 92; Laura Murphy, Kenneth Noga, & Mark Rose, Seeking
Pure Fields: The Case Against Federal Preemption of State GMO Crop Bans, 49 U.S.F. L. REV.
(forthcoming 2015); Do Tell: The Case for Mandatory Labeling of GE Foods, 28(2) ABA
NATURAL RES. & ENV’T 14 (2013).

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3. Proposed Federal Seafood Certification
While federal and state government can play an integral role to
improve the credibility of green claims for food products, agency
authority to regulate labels and claims is limited. There is also a
notable distinction to be made between government-mandated
labeling schemes that are intended to ensure a particular level of
performance and/or provide greater clarity and transparency; and
those aimed at the promotion and marketing of domestically
produced products. Whether the latter presents a conflict with the
mission of a particular agency is one of the primary issues at hand in
an ongoing debate around two pending proposals to establish a
federal sustainable seafood certification program.
In 2014, the Marine Fisheries Advisory Committee (MAFAC)
submitted a formal recommendation to the National Oceanic and
Atmospheric Administration (NOAA) to establish a national
sustainable seafood certification program.98 Not long after, a Senate
bill to reauthorize the Magnuson-Stevens Fishery Conservation and
Management Act (MSA) was introduced and included a similar
provision, authorizing NOAA to establish a seafood certification
program.99 Arguably, these proposals were a reaction to the growing
concern by some domestic producers that products certified by
independent third parties (particularly imports) were gaining market
traction and a competitive advantage over U.S. fisheries. For some
U.S. producers, particularly those subject to federal management
jurisdiction, these proposals raised significant concerns for a wide
variety of stakeholders.100
Among the concerns highlighted by stakeholders was that the
administration of a federal certification program falls outside the
bounds of NOAA’s mission and presents a potential conflict of
interest.101 NOAA is charged with stewardship of living marine
resources in U.S. federal waters and plays a critical role in providing
objective data about our nation’s fisheries. Undertaking the business
of promoting and marketing seafood falls outside the bounds of
98. Sustainable Seafood Certification, NOAA
http://www.nmfs.noaa.gov/op/Sustainability/Sustainable_Seafood_Certification.html (last visited
May 2, 2015).
99. Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of
2014, S. 2991, 113th Cong. (2014).
100. See, e.g., Capt. John McMurray, Sustainable Seafood Certification and the Fed, REEL-
TIME.COM (Apr. 23, 2014), http://www.reel-time.com/articles/conservation/sustainable-seafood-
certification-feds/.
101. Id.

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NOAA’s conservation and management mission, and could therefore
undermine the agency’s ability to serve as a source of neutral and
unbiased fisheries information.
A certification program that requires the same agency charged
with sustainable management of marine resources to also distinguish
between high-performing and low-performing fisheries poses an
inherent conflict of interest. Indeed, as official stewards of the
resource, NOAA Fisheries is ultimately accountable for any
mismanagement. Designating a fishery as low-performing could
imply failure by NOAA itself, creating a disincentive for the agency
to call attention to non-compliant and/or underperforming fisheries
given the potential for lawsuits or other reprisals. To ensure that
NOAA remains true to its mission as marine resource stewards, and
continues to be a neutral source for critical fisheries data and
information, many feel that it should not play a role in the
development and administration of a national seafood certification
program.
Likewise, there may be international trade implications with this
type of certification. If the United States sets a precedent by
establishing a certification program for domestically harvested
products, foreign markets might view this as protectionist. Foreign
governments could respond with analogous certification programs
that provide market advantages for their own products and
disadvantage and/or limit opportunities for U.S. seafood exports,
which account for billions of dollars annually and support thousands
of American workers. Foreign certification programs could also
include criteria that go beyond fisheries management, such as giving
preference to products produced under local environmental, labor,
and social-justice standards. This would only further complicate U.S.
seafood trading opportunities.
Furthermore, the proposed federal seafood certification program
does not comply with globally accepted standards for eco-labels.
Neither the Senate proposal nor the MAFAC proposal are likely to
meet the eco-labeling guidelines developed by the United Nations
Food and Agriculture Organization (FAO) or the codes of good
practice set by ISEAL, the well-respected global association for
sustainability standards. These commonly accepted standards and
guidelines for certification represent the threshold requirements for
any credible certification program.102 Seafood buyers that rely on
102. ELIZABETH GUTTENSTEIN, NADIA EL-HAGE SCIALABBA, JONATHAN LOH, & SASHA

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certification to guide their purchasing decisions and communicate
their sustainability commitments are unlikely to accept weaker
standards. Absent alignment with the requirements established by
the FAO and ISEAL, a federal certification program will not gain the
market traction, recognition, or relevance that it seeks.
III. GOVERNMENT REGULATION OF FIRST- AND THIRD-PARTY
LABELING
Product labels and advertising are regulated by consumer
protection and anti-unfair competition laws by a number of
governmental and extra-governmental actors on the federal and state
levels. At the core of consumer protection and anti-unfair
competition regulation is the Federal Trade Commission (FTC),
which has the express authority to stop deceptive and mislabeled
products by issuing cease and desist orders, the violation of which can
lead to civil penalties.103
A. FTC Regulation
Congress authorized the Federal Trade Commission to regulate
“[u]nfair methods of competition in or affecting commerce, and
unfair or deceptive acts or practices in or affecting commerce” in
Section 5 of the FTC Act.104 To determine whether a label on a
product, or a term used in advertising a product, is deceptive, the
FTC applies the “reasonable consumer standard.”105 The essential
question is: what would a reasonable consumer believe the label
means? Applying this standard, the FTC regulates not only the
express meaning of a given label or term used in advertising, but also
anything that the label or term would imply to a reasonable
consumer.
Generally, the FTC examines all marketing claims for five
general requirements. The FTC requires (1) that all claims be
substantiated, and (2) that comparative claims must state the basis for
COURVILLE, FAO AND ISEAL ALLIANCE, A PAPER CONCEPTUAL FRAMEWORK FOR
PROGRESSING TOWARDS SUSTAINABILITY IN THE AGRICULTURE & FOOD SECTORS (2010)
(establishing the four pillars to ensure sustainable development as Good Governanance, Social
Development, Environmental Integrity, and Economic Resilience).
103. Greenwashing, supra note 9, at 41.
104. FTC Act, Unfair Methods of Competition Unlawful; Prevention by Commission, 15
U.S.C. § 45 (2012).
105. FTC, FTC POLICY STATEMENT ON DECEPTION (1983), available at https://www.ftc.
gov/public-statements/1983/10/ftc-policy-statement-deception.

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comparison.106 The FTC forbids (1) overbroad and unqualified
claims, (2) exaggerated claims, and (3) claims that use symbols or
seals of approval that are not understood by the general public.107 The
FTC has also articulated specific guidelines for endorsements and
green marketing claims.
Excluded from the FTC’s enforcement of unfair and deceptive
practices are claims that are defined as “puffery.” Whereas “a
specific and measurable claim, capable of being proved false or of
being reasonably interpreted as a statement of objective fact” is
actionable,108 puffery can be either “an exaggerated, blustering, and
boasting statement upon which no reasonable buyer would be
justified in relying” or “a general claim of superiority over
comparable products that is so vague that it can be understood as
nothing more than a mere expression of opinion.”109
In the early 1990s, the market for “environmentally friendly” or
“green” products blossomed, and, along with it, came false green
claims on product labels or in advertising. This phenomenon is
known as “greenwashing.” In response to greenwashing, the FTC
developed the Guides for the Use of Environmental Marketing
Claims—the “Green Guides.”110 As the green marketplace evolved
and research showed that specific claims confused or misled
consumers, the FTC promulgated revised Green Guides.111 The
current Green Guides include guidelines for general environmental
claims as well as terms such as “recycled,” “renewable,” and
“compostable,” as well as “free of” claims and “source reduction”
claims.112 Notably, the Green Guides do not include guidance on the
use of the terms “sustainable” or “natural.”
The Green Guides themselves are not binding law, but they do
offer a picture of what the FTC considers to be unfair or deceptive in
the field of green marketing. Any marketer that uses advertising or
106. J. THOMAS ROSCH, FTC, RESPONSIBLE GREEN MARKETING (2008).
107. Id. at 6–8.
108. Vitt v. Apple Computer, Inc., 469 F. Appx. 605, 607 (9th Cir. 2012) (internal quotation
marks omitted).
109. Pizza Hut, Inc. v. Papa John's Int’l., Inc., 227 F.3d 489, 497 (5th Cir. 2000).
110. 16 C.F.R. §§ 260.1–.17 (2014).
111. See FTC Issues Revised “Green Guides”, F.T.C. (Oct. 1, 2012),
http://www.ftc.gov/opa/2012/10/greenguides.shtm (“The Federal Trade Commission issued
revised ‘Green Guides’ that are designed to help marketers ensure that the claims they make
about the environmental attributes for their products are truthful and non-deceptive.”).
112. 16 C.F.R. § 260.7 (compostable), § 260.12 (recyclable), § 260.16 (renewable), § 260.17
(source reduction), § 260.9 (free-of claims).

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labeling to highlight the ecological attributes of its product,
packaging, or production techniques is well-advised to first analyze
whether the claims comply with the Green Guides.
B. State “Mini-FTC” Laws
Federal law does not preempt states from enacting and enforcing
their own consumer protection and anti-unfair competition laws,
generally known as “mini FTC” laws. These laws enable state
Attorneys General to prosecute unfair and deceptive acts and
practices in commerce (“false advertising”) generally, and state
consumer protection laws often enable civil causes of action. The
state laws sometimes include specific restrictions and enforcement
against the inappropriate use of specific terms that the state has found
to be deceptive or unfair.
California, for example, has enacted specific laws related to
green marketing of consumer goods, requiring that:
[a]ny person who represents in advertising or on the label or
container of a consumer good that the consumer good that it
manufactures or distributes is not harmful to, or is beneficial to, the
natural environment, through the use of such terms as
‘environmental choice,’ ‘ecologically friendly,’ ‘earth friendly,’
‘environmentally friendly,’ ‘ecologically sound,’ ‘environmentally
sound,’ ‘environmentally safe,’ ‘ecologically safe,’ ‘environmentally
lite,’ ‘green product,’ or any other like term, shall maintain in
written form . . . documentation supporting the validity of the
representation.113
In order to comply with California law, businesses must furnish such
documentation to individuals upon request.114 Remarkably,
California requires that businesses keep a record of whether their
green marketing complies with the FTC Green Guides,115 and
compliance with the Green Guides serves as a defense in suits under
the California statute.116 If prosecuted by the state, violation of this
law carries a criminal penalty.117
Vermont’s Consumer Fraud Act (VCFA) is fairly typical in
declaring as unlawful “[u]nfair methods of competition in commerce,
113. CAL. BUS. & PROF. CODE § 17580(a) (2009).
114. Id. § 17580(b).
115. Id. § 17580(d).
116. Id. § 17580.5(b).
117. Id. § 17581.

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and unfair or deceptive acts or practices in commerce.”118 The VCFA
enables the state’s Attorney General to promulgate rules to
accomplish the VCFA’s purpose.119 Lawmakers also specified that the
state’s court should be guided by the construction of “unfair or
deceptive acts or practices in commerce” by the FTC as well as other
courts.120 This implies that the state’s courts will consider the FTC’s
Green Guides in determining whether an environmental marketing
claim is deceptive.
Vermont also has an origin rule, stemming from the marketing
benefit that Vermont businesses have long enjoyed from the state’s
green reputation. The Vermont Origin Rule was enacted in response
to complaints about out-of-state businesses, with little or no
connection to Vermont, using the Vermont name on their products.121
The Origin Rule regulates three kinds of claims: (1) unqualified
representations of Vermont origin (“Vermont cheddar”); (2)
Qualified representations of Vermont origin (“Made in Vermont”);
and (3) company names (“Vermont Sausage, Inc.”).122 The rules on
unqualified representations and company names apply only to food
marketing, whereas the rules on qualified representations apply to
goods and services generally.123 Violation of the Vermont Origin Rule
is prima facie evidence of violation of the Consumer Fraud Act, with
civil penalties up to $10,000 in addition to reimbursement of
consumers and attorney’s fees.124
C. Enforcement
Consumer protection laws are enforced through an array of
administrative action, federal and state prosecution, and federal and
state civil action. In addition to the costs of litigation and potential
penalties, marketers seek to avoid negative publicity. For this reason,
many lawsuits settle before summary judgment stages of trial, and
marketers are generally quick to comply with guidance from the FTC
and state attorneys general.125 Competitors may challenge a
118. VT. STAT. ANN. tit. 9 § 2453(a) (West 2014).
119. Id. § 2453(c).
120. Id. § 2453(b).
121. VT. CODE 3-2-118:CF 120 (2015).
122. Id. 120.04–.06 (2015).
123. Id. 120.02(a)–(b) (2015).
124.
VT. STAT. ANN. tit. 9 § 2461 (West 2014).
125. Peter E. Masaitis & Evan W. Wooley, How Puffery Can Blow Up Into False
Advertising Litigation, CORPORATE COUNSEL (Nov. 17, 2014), http://www.corpcounsel.com/id=
1202676593824/How-Puffery-Can-Blow-Up-Into-False-Advertising-Litigation?slreturn=20150

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business’s marketing claims in the National Advertising Division
(NAD) of the Better Business Bureau.
IV. PROPOSED SOLUTIONS
Federal and state agencies with jurisdiction over green claims
have much to do to improve the clarity, consistency, and credibility of
green claims for food products—but regulatory reform is only one
part of the solution. Industry will also play a critical role in creating
more transparency, accountability, and meaning among green
marketing claims. Some combination of government, industry, and
stakeholder-driven solutions will ultimately be necessary to bolster
the integrity and utility of labeling as a tool to drive and communicate
environmental improvements in our food production systems. These
proposed solutions include using mandatory labels as a baseline,
improving third-party certification standards, creating stronger
standards in consumer protection law, and embracing life-cycle
analysis.
A. Mandatory Labels as a Baseline and Government Involvement
An investigation into USDA’s organic certification reveals that
governments can provide significant trust among consumers, and the
funding they provide can be used to promote large-scale acceptance
of the certification.126 Centralized government eco-labels are more
effective than numerous private ones because it simplifies the
information. Simple, clear, obvious, and transparent seal-of-approval
logos and labels have generally shaped consumer behavior more than
complex information-disclosure labels.127
B. Improving Third-party Certification Standards
Given the problems inherent in first-party labeling, independent
third-party certification schemes are widely regarded as an important
tool in driving improvements throughout the value chain of food
004143545.
126. VERMEER, supra note 3, at 33.
127. See Abhijit Banerjee & Barry D. Solomon, Eco-Labeling for Energy Efficiency and
Sustainability: A Meta-Evaluation of US Programs, 31 ENERGY POL’Y 109, 109 (2003) (“It was
found that government programs . . . were much more successful than the private programs.”);
TOM BERRY, DAN CROSSLEY & JEMINA JEWELL, FORUM FOR THE FUTURE, CHECK-OUT
CARBON: THE ROLE OF CARBON LABELLING IN DELIVERING A LOW-CARBON SHOPPING
BASKET 6 (June 2008), available at https://www.forumforthefuture.org/sites/default/files/project/
downloads/check-out-carbon-final300608.pdf (explaining that disclosure should be at a general
level).

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production systems. For producers, they can offer an incentive
structure and roadmap for improving production. For buyers, they
can provide a basis to establish measurable sustainability goals,
enhance brand credibility, and buffer against risk. For consumers,
certified products offer a level of assurance, verification, and
transparency into their purchases. Indeed, well-designed and
effectively implemented certification schemes can fuel improvements
by providing market recognition to those working to minimize the
adverse impacts of food production.128 Like most things, however,
certification is not without its weaknesses and challenges. As the
certification landscape evolves and new challenges emerge, so too do
innovative solutions.
1. Cost
Though the cost of achieving and maintaining certification can be
overly burdensome, there is an increasing focus on innovative ways to
finance production improvements and facilitate movement towards
certification.129 A particularly novel approach involves one
certification serving as a financing mechanism for another
certification. Facilitating this approach, Fair Trade USA recently
launched a “wild capture” fisheries standard that includes
environmental sustainability requirements that align closely with, but
are less rigorous than, the sustainability principles and performance
indicators of the Marine Stewardship Council’s standard. Notably,
the Fair Trade certification requires that 30% of the Fair Trade
premium be allocated to supporting environmental improvements in
the fishery.130 As such, the possibility exists that a fishery that does
not perform at a level that would qualify it for certification by the
MSC could pursue a Fair Trade certification and generate a premium
that could be used to finance sustainability improvements and
ultimately lead to MSC certification eligibility.
2. Market Demand
Consumer recognition and support for certification varies
128. VERMEER, supra note 3, at 33. “[I]t is important to increase the rigor of the
certification over time to ensure validity among discerning consumers.”
129. KATE BONZON ET AL., ENVIRONMENTAL DEFENSE FUND AND THE PRINCE OF
WALES’S INTERNATIONAL SUSTAINABILITY UNIT, TOWARDS INVESTMENT IN SUSTAINABLE
FISHERIES: A FRAMEWORK FOR FINANCING THE TRANSITION (2014).
130. FAIR TRADE USA, CAPTURED FISHERIES STANDARD DRAFT VERSION 1.0 6 (2014),
available at http://fairtradeusa.org/sites/all/files/wysiwyg/filemanager/standards/FT_USA_
Capture_Fisheries_Standard.pdf.

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significantly from region to region. Compared with the European
marketplace, the demand for certified products in the North
American market is relatively low.131 For certification to drive
change, standard holders/certification schemes need to understand
the entire value chain. They need to develop strategies to generate
greater market recognition so that as demand increases, so too does
the volume of certified product and vice versa.132
3. Product Availability
Even where there is sufficient market demand, there is often not
enough certified product to meet the demand. To address this deficit,
more attention and resources are going toward creating pathways for
improvement. In the seafood space, there has been a subtle shift
from the traditional “buy” or ”don’t buy” sourcing strategy to
improve sustainability. Now, fishery and aquaculture improvement
projects (FIPs and AIPs respectively) are an emerging tool for
producers seeking to improve the environmental performance of their
fishery or farm to a level consistent with an “unconditional pass” of
some of the leading wild fisheries and aquaculture certification
standards.133 Meanwhile, major seafood buyers are formulating
sourcing policies and procurement specifications that prioritize
sourcing products from a FIP or AIP where certified products are
unavailable at the volume, price point, or quality they demand.134
131. VERMEER, supra note 3, at 33–34.
132. Id. at 33 (“Literature on the Rainforest Alliance suggests that their certification was
successful because the organization understood the entire value chain from the farmers to the
CPG companies and therefore had an appealing argument for all stakeholders. This
certification experienced rapid growth and recognition because it was placed on numerous
popular products across industries, and because some of the best marketing companies in the
world promoted the Rainforest Alliance label on their products. The MSC certification
continues to be a force in the industry because it has targeted its approach towards large-scale
fisheries in an effort to obtain a significant supply volume so that the products could be
purchased by Whole Foods, and more recently, by Walmart. In each of these labels a third-
party certifier was also essential.”); see also id. at 34 (discussing the continued need to increase
market demand for eco-labeled products in the United States).
133. See Guidelines for Supporting Fishery Improvement Projects, CONSERVATION
ALLIANCE FOR SEAFOOD SOLUTIONS, http://www.solutionsforseafood.org/news/new-
guidelines-website-help-businesses-evaluate-source-fishery-improvement-projects/ (last visited
March 30, 2015) (“The Conservation Alliance for Seafood Solutions released today updated
guildelines [that] define the types of fishery improvement projects, or FIPs, members . . . will
consider recommending to their business partners[.]”).
134. See id. (“These new tools will help us better meet the needs of our business partners”
(internal quotation marks omitted)).

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4. Market Confusion
Accompanying the growing demand for certified products is an
increase in the number and diversity of standards and eco-labels in
the marketplace, each representing varying degrees of credibility and
environmental performance. Limited transparency and an inability to
effectively compare standards create both confusion and the potential
for greenwashing to undermine the value of certification as an
effective sustainability tool. Efforts to generate greater transparency,
clarity, and accountability in the seafood certification space are being
undertaken via the Global Seafood Sustainability Initiative (GSSI).135
5. Administrative Burdens
The burgeoning number of certifications also presents some
administrative and logistical burdens to the supply chain. To meet
the demands and comply with the sustainability commitments of
multiple buyers, producers, and suppliers must navigate and reconcile
often conflicting, incongruous, and onerous administrative
requirements of different certification schemes. In some sectors,
there is a movement towards greater coordination between standards
to increase operational efficiency.136
6. Incentivizing Continuous Improvement
The dialogue around sustainability has shifted subtly in recent
years such that sustainability is often characterized as a defined
endpoint (you either are or are not sustainable) as opposed to a
journey.137 Some would argue this shift undermines efforts to
135. THE GLOBAL SUSTAINABLE SEAFOOD INITIATIVE 6, available at
http://www.ourgssi.org/assets/ Information-Package/2014-04-17GSSI-PPT-.pdf (“The mission of
Global Sustainable Seafood Initiative (GSSI) is to deliver a common, consistent and global
benchmarking tool for seafood certification and labeling programs to ensure confidence in the
supply and promotion of sustainable seafood to consumers worldwide as well as promote
improvement in the programs.”).
136. See GAA Signs MoU With ASC, GLOBALG.A.P, GAALLIANCE (April, 2013),
http://gaalliance.org/news-events/newsroom/gaa-signs-mou-with-asc-globalg-a-p/ (“The Global
Aquaculture Alliance (GAA) on April 22 [2013] signed a memorandum of understanding
(MoU) with the Aquaculture Stewardship Council (ASC) and Global G.A.P. whereby the
standards-setting organizations will work collaboratively to increase efficiency and reduce
duplication in the auditing process. GAA, ASC, and GlobalGAP agreed to explore ways to
reduce duplication of effort for farms, processing plants, hatcheries and feed mills that
undertake certification by more than one of the three organizations’ certification programs. All
three certification programs share common elements that address the key environmental and
social impacts of aquaculture, yet currently audits for each set of standards is conducted
separately.”).
137. See Tlusty et al., Refocusing Sustainability as a Journey Using the Law of the Minimum,

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facilitate continuous improvement, but increasingly stakeholders are
developing tools to incentivize movement along that continuum—
working with certifications to strengthen their standards and thereby
increase environmental performance.
For those working to strengthen the role and impact of
certification, the expectation is that well-designed and implemented
certification schemes will ultimately lead to positive changes in the
environment. To ensure that these improvements are real and
enduring, certification schemes themselves must be credible and
provide the following nine elements at a minimum. (1) Clarity,
meaning that the social, environmental, and economic objectives and
scope of a standard are clearly defined. (2) Accuracy, meaning that
claims made about the effectiveness of the program, or social or
environmental impacts that derive from the purchase of a product or
service, are accurate and do not overstate the results. (3)
Transparency, meaning that information about how a standards
system operates and how to engage with the standards system is made
easily available. (4) Participation by a diverse range of stakeholders,
meaning that standards are developed through a process that includes
a reasonable balance of appropriate representation in discussion and
decision making. (5) Measurable, performance-based metrics,
meaning that requirements in the standard contribute explicitly and
consistently to the objectives that the standard is seeking to achieve.
(6) Local applicability and global consistency, meaning that standards
are relevant for the specific socio-economic and ecological contexts in
which they are applied, while achieving consistent results across
different contexts. (7) Traceability, meaning that where a standards
system includes claims related to the origin of a product, the product
can be traced back to certified operations. (8) Continuous
improvement, meaning that standards system’s effectiveness in
achieving its stated objectives is assessed and the learning is
integrated into the system to enable continuous improvement. And
finally, (9) impact “on the water,” meaning that there is a correlation
between the improvements in harvest/production and environmental
performance.
4 SUSTAINABILITY 2038 (2012) (“Currently, the message of seafood sustainability is
becoming complicated in that the journey toward sustainability is being referred to as
having achieved a state of sustainability.”).

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C. Life-Cycle Analysis138
In order for food eco-labels to have cutting edge information,
governments and certifiers must pursue an “organic plus” model.
Practically implementing an organic certification program and eco-
label built on base practices standards or environmental life-cycle
analysis is no small task. An eco-label informational and certification
scheme can provide engaged consumers with a measurable analysis
created by experts, and provide a single point of product comparison
for the less engaged consumer.
How would such an eco-labeling scheme be implemented? First,
a group of experts, under the direction of a state agency, must pick
food categories, identified by the significance of their adverse
environmental impacts, where eco-labels would make significant
improvements to the environment.139 These categories might include
meats and seafood; pesticide-intensive produce like berries, spinach,
and potatoes; and heavily processed foods. For example, research on
carbon footprinting has shown that there are product categories that
have high variability in footprints within a singular category, so it
makes sense to inform consumers about these differences, as it “will
give them genuine options that make a difference” since “consumers
need options, not just information.”140
Second, environmental life-cycle analysis methodology and/or
best practices standards must be developed and used. Considerations
should include natural resource and chemical inputs (starting at the
production process or raw extraction stage), as well as emissions and
pollution output during the production, distribution, use, and disposal
stages. The key is to inventory the materials that make up food and
that allow for food production. Equally important, and more difficult
to determine, is how to inventory their environmental impact. No
widely accepted environmental life-cycle assessment methodology for
food currently exists.
Third, products must be evaluated according to the above
138. See The Food Statutes, supra note 17, at Ch. 17.; see also Food Law and the
Environment, supra note 18.
139. Karl Johan Bonnedahl & Jessica Erikkson, The Role of Discourse in the Quest for
Low-Carbon Economic Practices: A Case of Standard Development in the Food Sector, EUR.
MGMT J. 9 (2010) (“KRAV [stated] [t]he label should build in climate impact within broad
categories but not distinguish the categories themselves. Somewhat inconsistent however,
under the heading ‘what to do awaiting the [climate] label on its homepage, KRAV did advice
consumers to eat less meat, giving the example that meat causes CO2 emissions that may be 67
times higher than beans do.”).
140. Berry et al., supra note 127, at 7, 12.

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scientific criteria, with a seal awarded to those products surpassing a
designated benchmark. It is key to determine what factors influence
the success of any eco-labeling program. In other words, what labels
work? It is hard to over-emphasize the importance, though, of first
identifying what food categories would most help the environment if
their carbon, chemical, and waste footprints were reduced.
Finally, a sound graphic in the form of a label or seal must
communicate effectively with the consumer.
V. CONCLUSION
Order must be brought to the chaos of food eco-labels if we are
to use an informational regulation to reach a sustainable food system.
The challenges facing food eco-labeling include greenwashing, a
proliferation of labels, consumer confusion, and the need for more
and higher quality information. First-party self-declared food eco-
labels are particularly problematic due to the lack of oversight and
the self-interest of these labelers. Encouragingly, labels through
voluntary third-party certification (both public and private) and
mandatory government food labeling are gaining traction.
The path to ordering the food eco-label chaos will require
participation by numerous stakeholders. Government must assume a
greater role, by increasing involvement in labeling and strengthening
consumer protection enforcement. A good starting point for doing so
would be to build on state law and the FTC Green Guides. Industry
must also play its part, improving third-party certification by building
upon the organic label to include life-cycle analysis and carbon
footprint budgeting.