Ultra-processed foods (UPFs) have come under increased scrutiny at both the state and federal levels, primarily due to their purported negative impacts on human health. But that concern may only be the beginning, as UPFs — and the large companies that manufacture and sell them — come under new fire for their alleged contributions to climate change and for practices that purportedly “greenwash” these global impacts.
A recent article in The Guardian calls the global supply chain of UPF ingredients “a major driver of the climate crisis.” Among the practices blamed are deforestation linked to cocoa farming, and greenhouse gas emissions associated with the production of milk solids, sugar, corn, and palm fat, as well as food dyes (like E132) made via a chemical reaction. According to the article, CarbonCloud — a Swedish Company that offers a platform claiming to calculate the emissions of food products based on publicly available data — has estimated that the popular candy M&Ms generates at least 13.2 kilograms of carbon equivalents per kilogram of M&Ms produced. The article asserts that emissions calculations based on publicly available data are likely underestimated as well.
The article goes on to note that, while certain companies have made sustainability commitments, some argue those promises amount to little more than “greenwashing” — that is, advertising or promoting a product or service as more environmentally friendly (or “greener”) than it actually is. Citing a senior researcher at the French National Institute for Agriculture, Food, and the Environment, the article suggests that merely tweaking product ingredients to reduce environmental impact without overhauling the industry can also be a form of “greenwashing.”
In recent years, supposed greenwashing has arisen as a prominent theme in both product liability and environmental litigation (e.g., climate change, PFAS). Claims in those lawsuits have included both tort (e.g., public nuisance, trespass, and failure to warn) and deceptive marketing theories, with the latter recently gaining more emphasis.
In the climate change lawsuits brought by states and local governments against oil and gas companies, plaintiffs allege that the companies’ oil and gas production has caused global climate change. Plaintiffs assert public nuisance and other traditional tort claims, alleging a host of downstream harms. But plaintiffs also pursue consumer deception claims under various state laws, alleging fossil-fuel producers misled consumers by denying climate science and later engaging in greenwashing by supposedly exaggerating investments in renewables and low-carbon energy and downplaying their core oil and gas businesses, while suggesting that oil and gas products are not harmful or are less harmful than they actually are.
PFAS litigation likewise has involved both traditional tort and “greenwashing” claims. Certain PFAS chemicals, frequently referred to as “forever chemicals” because of their alleged persistence in the environment, have been used in an array of household goods and industrial processes because of their stain- and fire-resistant properties. The discovery of certain PFAS chemicals in public water supplies has led to numerous individual lawsuits and class actions brought under tort theories (e.g., nuisance, negligence, strict liability, trespass). As awareness of PFAS chemicals grew, focus shifted to consumer products allegedly containing or processed using PFAS chemicals, such as waterproof clothing, personal care products, and diapers; new lawsuits were filed alleging that companies had engaged in greenwashing by advertising their products as “safe,” “natural,” or “sustainable” when they were allegedly made with dangerous man-made PFAS chemicals.
If litigation arises over the environmental impacts of UPFs, one could envision claims similarly brought under consumer deception theories, including alleged greenwashing theories, in addition to tort theories. For food companies facing potential exposure related to UPFs, it would be prudent to review public-facing communications regarding both UPFs specifically and sustainability or environmentalism more broadly to understand the risk of potential greenwashing claims and to consider whether any changes to or clarifications of those communications may be warranted.
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