What You Need To Know In A Minute Or Less
In a minute or less, here is what you need to know about the expanding state of greenwashing litigation being filed against manufacturers, distributors, and retailers of consumer products.
1 Types of Suits
Greenwashing litigation—in which plaintiffs allege that
companies falsely represent their products or themselves as
environmentally friendly (or obscure negative environmental
attributes)—poses a significant concern for companies
involved in product manufacturing, distribution, and sales. Suits
targeting the language on product labels or advertisements have
become increasingly common, but plaintiffs are now going further,
asserting that a challenged statement need not be about a specific
product to fall within the ambit of consumer protection laws. In
other words, any statement made by a manufacturer about the
sustainability practices of the company—rather than a company
product—may be the subject of litigation.
These lawsuits also challenge a broader range of statements.
Plaintiffs are now seeking to challenge "aspirational
statements" regarding businesses' efforts to become more
sustainable, a category of statements that has historically been
treated as beyond the reach of consumer protection statutes.
2 Plaintiffs' Targets and Claims
Consumers, environmental advocacy groups, and even state and
local governments are filing greenwashing suits against companies
across various industries—food, personal care products,
fashion, cosmetics, transportation, technology, and more—that
they believe have misled the public about the environmental
attributes of their products and their businesses. Plaintiffs are
targeting carbon-neutral and carbon-reduction claims, challenging
the veracity of carbon-offset programs as a whole.
They also assert claims regarding the recyclability and
compostability of products based on whether the product can
technically be recycled or composted and whether, in practice, the
product is actually recycled or composted.
In digging into ingredient lists and comparing the environmental
effects of those ingredients to the products' and
companies' marketing materials on environmental issues,
plaintiffs are alleging that companies identifying sustainability
among their values can be liable for any product the plaintiff
believes does not live up to that standard.
The vast majority of these suits, when filed by consumers, are
brought as putative class actions, but we also see public
injunction lawsuits, in which a single person or advocacy group
demands that a statement be retracted or revised, or that sales of
the product containing the challenged advertising be halted.
3 How to Protect Yourself
Substantiation is key. Ensure that all environmental claims are
backed by clear and accurate evidence, and have your marketing and
legal teams collaborate closely to ensure that marketing materials
are substantiated and compliant with relevant regulations.
Additionally, verify that any environmental certifications your
company advertises come from reputable organizations, and maintain
proper documentation to support these certifications.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
