by: Sara Skinner Chubb

Earlier this month a New York federal judge tossed a class action filed against Danone Waters of America alleging “carbon-neutral” certification labels on its Evian water bottles were deceptive and misleading. In the complaint, customers claimed they believed the label meant the product did not produce any carbon emissions, which is not the case. In an earlier decision, the judge concluded that the representation was ambiguous to consumers and could, in fact, be understood to mean that the product had “zero-emissions,” despite the label including a link to Evian’s website where consumers could learn more about the meaning of “carbon-neutral.”

In reversing his earlier decision, the judge held that vagueness or ambiguity on the front label could be addressed by providing clarifying information on the back label, in this case, the link to a webpage explaining the certification process and the meaning of the “carbon-neutral designation.” Further, contextual clues about the product, including that “there is no such thing as a 'carbon zero' product” and that the product was sourced in the French Alps and transported to California and then to local retail stores, made a “zero-emissions” interpretation of the claim unreasonable. Dorris v. Danone Waters of America, No. 22-CV-8717 (S.D.N.Y. Nov. 14, 2024). Plaintiffs have leave to amend their complaint.

At the end of August, an appellate court overturned a trial court’s dismissal of a complaint filed against Coca-Cola by Earth Island Institute alleging violations of the D.C. Consumer Protection Procedures Act. Earth Island Institute challenged various claims and representations that Coca-Cola’s business was environmentally sustainable, “or at least that it is currently making serious strides towards environmental sustainability.”

Coca-Cola moved to dismiss, arguing, among other things, that aspirational statements about future goals were not actionable under the CPPA. In reversing the lower court’s decision, the appellate court disagreed, noting that aspirational claims are actionable under the CPPA because “they can convey to reasonable consumers that a speaker is taking (or intends to take) steps that at least have the potential of fulfilling those aspirations.” Earth Island’s complaint points to numerous statements and representations made by Coca-Cola, including those that touted efforts to increase recyclability of its products and use more recycled materials when making those products. It goes on to accuse Coca-Cola of greenwashing, arguing that the company’s reliance on single-use plastic is inherently unsustainable and that recycling is not a viable means of mitigating the environmental harm caused by the company, noting that less than 10% of recyclable plastics are actually recycled in the United States.

The appellate court’s reversal is consistent with a recent shift towards increased scrutiny of aspirational claims. In 2023, the National Advertising Division (NAD) recommended JBS USA Holdings, Inc., the largest meat producer in the world, discontinue various aspirational green claims, including that “JBS is committing to be net zero by 2040.” Despite demonstrating “a significant preliminary investment toward reducing emissions by 2040,” the NAD felt such claims reasonably create a high expectation on the part of consumers and require significant evidence that the advertiser’s efforts are providing environmental benefits with a very specific measurable outcome. Following the NAD decision, the NY Attorney General sued JBS in February of this year, alleging that JBS’s carbon neutral claims amount to misleading greenwashing. The AG points out that beef production emits the most greenhouse gas emissions of any major food commodity and reasons that net zero carbon emissions run contrary to statements from JBS about plans to increase production.

Both the JBS and Coca-Cola cases highlight the tension between core business practices that are inherently detrimental to the environment and green marketing claims.

So where does that leave advertisers who wish to promote their efforts to engage in more environmentally friendly practices? The legal landscape continues to shift, and regulation and enforcement aren’t slowing down, but a couple of basic principles can help reduce risk for companies making claims like those at issue in the Coke, Danone and JBS cases:

1. Avoid broad or ambiguous claims. Consider whether certain facts and limitations are so material that they must accompany the main claim, even when paired with clear instructions to the consumer about where they can go to get more information. Remember that advertisers are responsible for all reasonable interpretations of their claims, whether intended or not, and there is ample room for misunderstanding where a term does not have a settled definition.

2. Take care when crafting aspirational claims because the line between puffery and a claim isn’t always clear.  Companies that operate in industries inherently in tension with environmental preservation should exercise extra caution when crafting green marketing messages.  

Originally published by InfoLawGroup LLP. If you would like to receive regular emails from us, in which we share updates and our take on current legal news, please subscribe to InfoLawGroup’s Insights HERE.