Two recent proposed US class actions relating to "greenwashing" demonstrate a continuation of the trend of private law claims relating to the environment being brought against companies.
In Maria Guadalupe Ellis, et al. v. Nike USA, Inc., et al., a proposed class action brought in a federal Missouri court, the putative class alleges that Nike "greenwashes" certain of its products through "deceptive labelling". The specific claim is that Nike "falsely and misleadingly markets" certain of its products as "sustainable" by "suggesting and outright stating that their clothing products are sustainable, made from sustainable materials, and environmentally friendly when, in fact, they are not." The putative class claims that Nike's alleged conduct violates a state statute, the Missouri Merchandising Practices Act. The proposed action also asserts common law claims of unjust enrichment, negligent misrepresentation, and fraud. The putative class seeks monetary damages, injunctive relief precluding Nike from selling "misbranded" products, and an order requiring Nike to "undertake a corrective advertising campaign."
In Mayanna Berrin v. Delta Air Lines Inc., a proposed class action brought in a federal California court, the allegation is that since March 2020, when Delta Air Lines began representing itself as "the world's first carbon-neutral airline," it has "misstated the actual carbon reduction produced by [its] carbon offset portfolio." As a result, its claims of carbon neutrality are alleged to be false, as instead of achieving carbon neutrality through "sustainable fuels and carbon removals," Delta has "premised their carbon neutrality on the purchase of carbon offsets from the voluntary carbon market."
Neither case has advanced to the certification stage. However, these proceedings evidence a growing trend of litigants trying to seek private law relief for environmental claims. Canadian companies that make representations to consumers about the environmental benefits of their products or services should consider these US developments.
Other Fasken bulletins have reviewed private law claims arising out of environment-related allegations. For example, we reported on a German court's dismissal of a climate-related action against Volkswagen AG, a noteworthy rejection of climate activists' efforts to seek redress against private entities. We also wrote on the Ontario Court of Appeal's dismissal of a proposed class action alleging false or misleading representations in relation to EnerGuide fuel consumption labels.
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