{"id":174,"date":"2022-11-18T17:58:39","date_gmt":"2022-11-18T21:58:39","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/fashionretailbrandedconsumergoods\/?p=174"},"modified":"2022-11-19T12:12:31","modified_gmt":"2022-11-19T16:12:31","slug":"activist-greenwashing-case-in-d-c-runs-aground","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/fashionretailbrandedconsumergoods\/2022\/11\/18\/activist-greenwashing-case-in-d-c-runs-aground\/","title":{"rendered":"Activist Greenwashing Case In D.C. Runs Aground"},"content":{"rendered":"<p>&#8220;Greenwashing,&#8221; a topic of frequent discussion, actually has dictionary definition.\u00a0 According to Merriam-Webster, greenwashing is &#8220;the act or practice of making a product, policy, activity, etc., appear to be more environmentally friendly or less environmentally damaging than it really is.&#8221;\u00a0 A trial court in the District of Columbia recently dismissed a greenwashing case brought by an environmental activist group against a major beverage producer, making some interesting findings in the process.\u00a0 <span style=\"font-size: 1rem\"><em>Earth Island Institute v. Coca-Cola Co.<\/em>, No. 2021 CA 001846 B (D.C. Super. Nov. 10, 2022). <\/span><!--more--><\/p>\n<p>Plaintiff, Earth Island Institute, claimed that certain statements by the Coca-Cola Company, on social media, the company&#8217;s website and other outlets were false and deceptive and therefore actionable under the D.C. Consumer Protection Procedures Act (CPPA), D.C. Code \u00a7 28-3901 <em>et seq<\/em>.\u00a0 The challenged statements included assertions such as:<\/p>\n<ul>\n<li style=\"list-style-type: none\">\n<ul>\n<li>\u201cOur planet matters. We act in ways to create a more sustainable and better shared future;&#8221;<\/li>\n<li>\u201cWe\u2019re using our leadership to achieve positive change in the world and build a more sustainable future for our communities and our planet;&#8221;<\/li>\n<li>\u201c[C]omitted to creating a World Without Waste by taking responsibility for the packaging we introduce to markets and working to reduce ocean pollution.\u201d<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<p>The court determined that these generalized assertions created no claim under the CPPA:<\/p>\n<p style=\"padding-left: 40px\"><strong><span style=\"color: #008000\">The above statements are general, aspirational corporate ethos. There are no promises or measurable datapoints that would render the above statements true or false. Phrases such as \u201ca more sustainable and better shaped future,\u201d \u201ca focus of ours,\u201d \u201ca more sustainable future for our communities and our planet,\u201d \u201chelp develop more effective recycling systems,\u201d and \u201ccommitted <\/span><\/strong><strong><span style=\"color: #008000\">to creating\u201d are extremely vague, and while they point to a general theme of sustainability and corporate improvement, there is not a measurable standard to apply as to whether or not Defendant has met these general goals.\u00a0 Slip op. at 4-5.<\/span><\/strong><\/p>\n<p>The court also rejected Earth Island&#8217;s challenge to the more specific\u00a0 statements that \u201cPart of our sustainability plan is to help collect and recycle a bottle or can for every one we sell globally by 2030;\u201d and \u201cMake 100% of our packaging recyclable globally by 2025. [And] [u]se at least 50% recycled material in our packaging by 2030.\u201d\u00a0 As the court reasoned:<\/p>\n<p style=\"padding-left: 40px\"><strong><span style=\"color: #008000\">The above statements are much more specific than the previous statements. These statements include specific measurements that hold the potential to be a promise to a consumer.\u00a0 With that said, the statements also include the caveat that the goals are set significantly in the future. . . . As future, aspirational goals, these statements cannot successfully create a valid claim <\/span><\/strong><strong><span style=\"color: #008000\">under the CPPA until they have been found to be inaccurate or misleading.\u00a0 Slip op. at\u00a0 5-6.<\/span><\/strong><\/p>\n<p>Another reason that the plaintiff&#8217;s claims failed to state a CPPA cause of action was the fact that none of these sustainability statements appeared on the label or product itself:<\/p>\n<p style=\"padding-left: 40px\"><strong><span style=\"color: #008000\">Including corporate ethos, hopes, and philosophies, represented by statements on various corporate communication, but not on the product label cannot be considered as part of the product itself.\u00a0 Slip op. at 8.<\/span><\/strong><\/p>\n<p>At bottom, Earth Island&#8217;s complaint merely attacked the manner in which the defendant had branded itself, but &#8220;[n]othing in the CPPA prohibits an entity from cultivating an image.&#8221;\u00a0 Slip op. at 10.\u00a0 As the court elaborated:<\/p>\n<p style=\"padding-left: 40px\"><strong><span style=\"color: #008000\">The complaint begs several questions:\u00a0 What is a sustainable company, or even an environmental advocacy group?\u00a0 Who defines the terms?\u00a0 What are consumer expectations?\u00a0 There is no precedent for such questions, in part because the law does not regulate expectations.\u00a0 Moreover, goals cannot be promises.\u00a0 In any event, how does Earth Island Institute or a reasonable juror <\/span><\/strong><strong><span style=\"color: #008000\">decide that Coca-Cola\u2019s future goals cannot be met.\u00a0 Would Earth Island Institute make the same allegation about a manufacturer who promised aircraft in 1900, a President in 1961 who promised to land a person on the moon and return that person safely to Earth by 1970, or an entrepreneur whose goal in 2000 was to have more than 95% of Americans owning a cellular phone in 20211.\u00a0 Courts cannot be expected to determine whether a company is actually committed to creating a \u201cworld without waste\u201d or \u201cto doing business the right way.\u201d\u00a0 Slip op. at 10.<\/span><\/strong><\/p>\n<p>The <em>Earth Island<\/em> ruling is a blow to aggressive greenwashing claims and could be an important precedent.\u00a0 The CPPA is considered to be very pro-consumer legislation, and D.C. is widely regarded as a plaintiff friendly forum.\u00a0 Moreover, NGO&#8217;s have standing under the statute to bring representational actions without actually buying anything themselves.\u00a0 As more and more corporations make representations about sustainability and so forth, the risk for consumer claims under far-reaching statutes such as the CPPA increases.\u00a0 However, in this case, the court reached the commonsense result that aspirational claims about sustainability and the environment that reflect &#8220;corporate ethos, hopes, and philosophies&#8221; are not the stuff that a valid consumer fraud claim is made of.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>&#8220;Greenwashing,&#8221; a topic of frequent discussion, actually has dictionary definition.\u00a0 According to Merriam-Webster, greenwashing is &#8220;the act or practice of making a product, policy, activity, etc., appear to be more environmentally friendly or less environmentally damaging than it really is.&#8221;\u00a0 A trial court in the District of Columbia recently dismissed a greenwashing case brought by &hellip; <\/p>\n<p class=\"link-more\"><a href=\"https:\/\/blogs.duanemorris.com\/fashionretailbrandedconsumergoods\/2022\/11\/18\/activist-greenwashing-case-in-d-c-runs-aground\/\" class=\"more-link\">Continue reading<span class=\"screen-reader-text\"> &#8220;Activist Greenwashing Case In D.C. Runs Aground&#8221;<\/span><\/a><\/p>\n","protected":false},"author":317,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[168,99,167,165,166,12],"ppma_author":[158],"class_list":["post-174","post","type-post","status-publish","format-standard","hentry","category-general","tag-beverages","tag-consumer-fraud","tag-earth-island-institute","tag-greenwashing","tag-john-simpson","tag-sustainability"],"authors":[{"term_id":158,"user_id":317,"is_guest":0,"slug":"jmsimpson","display_name":"John M. Simpson","avatar_url":"https:\/\/blogs.duanemorris.com\/fashionretailbrandedconsumergoods\/wp-content\/uploads\/sites\/41\/2022\/11\/simpsonjohn-100x100.jpg","0":null,"1":"","2":"","3":"","4":"","5":"","6":"","7":"","8":""}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/fashionretailbrandedconsumergoods\/wp-json\/wp\/v2\/posts\/174","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/fashionretailbrandedconsumergoods\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/fashionretailbrandedconsumergoods\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/fashionretailbrandedconsumergoods\/wp-json\/wp\/v2\/users\/317"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/fashionretailbrandedconsumergoods\/wp-json\/wp\/v2\/comments?post=174"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/fashionretailbrandedconsumergoods\/wp-json\/wp\/v2\/posts\/174\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/fashionretailbrandedconsumergoods\/wp-json\/wp\/v2\/media?parent=174"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/fashionretailbrandedconsumergoods\/wp-json\/wp\/v2\/categories?post=174"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/fashionretailbrandedconsumergoods\/wp-json\/wp\/v2\/tags?post=174"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/fashionretailbrandedconsumergoods\/wp-json\/wp\/v2\/ppma_author?post=174"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}