Pinkwashing & Cause-Related Marketing

November 1, 2013

Pink Dollar SignOctober was Breast Cancer Awareness month, and everywhere you turn you find pink ribbons and pink products to purchase. You can find post-it’shair texturizerhair dryersoffice chairscopy paper, even darts bearing the tell-tale pink hue and promising that a portion of the proceeds will go towards breast cancer research or treatment. The practice, known generally as “cause-related marketing” has become especially pervasive in regards to breast cancer awareness, so much so that it is now often described as “pinkwashing.” The pink ribbon image often utilized in pinkwashing is not officially licensed by any single entity, so its use doesn’t ensure that any funds are actually going to the cause stated.

Critics of pinkwashing argue that many businesses selling “pink” products lack transparency in regards to the amount of money being contributed and to whom, or exactly where it is being directed to. See for example, the “Think Before You Pink” campaign which encourages accountability and transparency by such companies, and encourages consumers to ask questions and think before purchasing “pink ribbon” products.

In addition, the New York Attorney General issued a press release in 2012 which encouraged greater transparency in such campaigns and the Better Business Bureau identifies similar concerns regarding a company’s failure to tie their contributions to the purchase of the “pink” products, or continuing to sell the “pink” products even after they have met a self-imposed “maximum” donation amount to organizations.

Many states go much further than simply encouraging transparency and accountability by cause-related marketers—they require it.  A brief perusal of various states’ statutes establishes at least a few common requirements: registration with the state, which may or may not include paying a fee or posting a bond (e.g., Mass. Gen. Laws ch. 68, § 24); disclosure, in the actual promotion or advertisement, of the percentage or dollar amount that will be or is reasonably estimated to be donated (e.g., Ohio Rev. Code § 1716.09); and a final accounting to the charitable organization and/or state Attorney General of all funds received as a result of the marketing promotion (e.g., Cal. Gov. Code § 12599.2).  The above-listed duties may be placed on the cause-related marketer and/or on the charitable organization itself (e.g., N.J. Stat. Ann. § 45:17A-29 (requiring the charitable organization to file the proper paperwork with the state AG’s office)).

RESEARCH REFERENCES

A simple plain language search for CAUSE-RELATED MARKETING in WestlawNext delivers this article from the George Washington Law Review.

PINK PROFITEERS: CAUSE-RELATED MARKETING AND THE EXPLOITATION OF CONSUMERS’ CONSCIENCES, Jessica Horne, 81 Geo. Wash. L. Rev. 223 (2013)

Some of the administrative materials from this query use the phrase “commercial co-venturing” as an alternative phrase for “cause-related marketing.” A plain language search for  COMMERCIAL CO-VENTURINGyields interesting statutory results.  See for example: 

VA ST § 57-61.2 Commercial Co-venturers

LSA-R.S. 51:1901.2 Commercial Co-venturers

NH ST § 7:28-d Charitable Sales Promotions

You can find statutory definitions of commercial co-venturer by running the following Words and Phrases field query:

WP(“COMMERCIAL CO-VENTURER”)

Example of one definition from Virginia:

“Commercial co-venturer” means any person who (i) is organized for profit, (ii) is regularly and primarily engaged in trade or commerce, other than in connection with soliciting for charitable or civic organizations or charitable purposes, and (iii) conducts an advertised charitable sales promotion for a specified limited period of time. VA Code Ann. § 57-48