73 Am. U. L. Rev. 145 (2023).

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Abstract

Even highly regulated labels, such as the organic label, have the potential for greenwashing. As recently as January 2023, a grain seller was indicted in federal court for a $43 million scheme that involved the sale of non-organic grain as USDA-certified organic. But today’s organic market is also full of sellers who follow the current federal organic regulations but fail to demonstrate the spirit of the organic movement—forgoing soil, animal welfare, and community for profit. I call this nuanced form of greenwashing quasi-greenwashing. It arises when a business complies with a rule or standard but takes advantage of consumer misunderstanding or confusion about that rule.

Using the organic label as an example, this Article examines how quasigreenwashing has become common as large corporations move into a market space that was once viewed as “alternative.” Because of their size and influence, these corporations can easily meet the federal organic standards but fail to address the non-market—and unregulated—aspects of organic farming, including its social and environmental benefits. Because these corporations do not run afoul of the law, the harms felt by traditional organic farmers, unsuspecting consumers, and the environment persist.

As this Article explains, existing methods for addressing greenwashing, such as regulatory enforcement by the Federal Trade Commission, will not cure growing quasi-greenwashing concerns, nor will they transform our food system into a sustainable one. Increased efforts to detect and eliminate fraud will simply protect what is already regulated—the organic market. Instead, to address quasigreenwashing, policymakers and advocates must work to remove the disconnect between consumers’ values and producers’ practices. Whatever approach is taken to achieve greater symmetry, advocates, attorneys, and agencies should take note: a new, more subtle form of deception is afoot. Quasi-greenwashing will emerge across business sectors, not just organics, as the federal government, in coordination with big business, plays a larger role in regulating (and defining) sustainable practices. 

* Professor of Law, Wake Forest University School of Law.