ACTIVIST GREENWASHING CASE IN D.C. RUNS AGROUND
By John M. Simpson, Duane Morris Animal Law
“Greenwashing,” a topic of frequent discussion, actually has dictionary definition. According to Merriam-Webster, greenwashing is “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.” 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. Earth Island Institute v. Coca-Cola Co., No. 2021 CA 001846 B (D.C. Super. Nov. 10, 2022).
Plaintiff, Earth Island Institute, claimed that certain statements by the Coca-Cola Company, on social media, the company’s website and other outlets were false and deceptive and therefore actionable under the D.C. Consumer Protection Procedures Act (CPPA), D.C. Code § 28-3901 et seq. The challenged statements included assertions such as:
• “Our planet matters. We act in ways to create a more sustainable and better shared future;”
• “We’re using our leadership to achieve positive change in the world and build a more sustainable future for our communities and our planet;”
• “[C]omitted to creating a World Without Waste by taking responsibility for the packaging we introduce to markets and working to reduce ocean pollution.”
The court determined that these generalized assertions created no claim under the CPPA:
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 “a more sustainable and better shaped future,” “a focus of ours,” “a more sustainable future for our communities and our planet,” “help develop more effective recycling systems,” and “committed to creating” 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. Slip op. at 4-5.
The court also rejected Earth Island’s challenge to the more specific statements that “Part of our sustainability plan is to help collect and recycle a bottle or can for every one we sell globally by 2030;” and “Make 100% of our packaging recyclable globally by 2025. [And] [u]se at least 50% recycled material in our packaging by 2030.” As the court reasoned:
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. 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 under the CPPA until they have been found to be inaccurate or misleading. Slip op. at 5-6.
Another reason that the plaintiff’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:
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. Slip op. at 8.
At bottom, Earth Island’s complaint merely attacked the manner in which the defendant had branded itself, but “[n]othing in the CPPA prohibits an entity from cultivating an image.” Slip op. at 10. As the court elaborated:
The complaint begs several questions: What is a sustainable company, or even an environmental advocacy group? Who defines the terms? What are consumer expectations? There is no precedent for such questions, in part because the law does not regulate expectations. Moreover, goals cannot be promises. In any event, how does Earth Island Institute or a reasonable juror decide that Coca-Cola’s future goals cannot be met. 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 2021. Courts cannot be expected to determine whether a company is actually committed to creating a “world without waste” or “to doing business the right way.” Slip op. at 10.
The Earth Island ruling is a blow to aggressive greenwashing claims and could be an important precedent. The CPPA is considered to be very pro-consumer legislation, and D.C. is widely regarded as a plaintiff friendly forum. Moreover, NGO’s have standing under the statute to bring representational actions without actually buying anything themselves. 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. However, in this case, the court reached the commonsense result that aspirational claims about sustainability and the environment that reflect “corporate ethos, hopes, and philosophies” are not the stuff that a valid consumer fraud claim is made of.