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Keeping you in-the-know on environmental, social and governance developments

Greenwashing, and the litigation surrounding it, continue to grow with both regulators and consumers challenging companies’ climate and sustainability statements in court. Greenwashing isn’t just a problem in the US, companies are making claims globally that can’t be fully supported with evidence. Greenwashing often occurs in the context of net-zero or carbon-neutral product claims, but as we’ll see today broader sustainability claims are also fertile ground for misleading and false claims.

Litigants in federal court in Massachusetts are asking the public not to trust the Gorton’s fisherman when it comes to products labeled as “sustainably sourced.” However, litigants tell a different story and claim that Gorton’s tilapia comes from environmentally detrimental farms in China. A write-up from Top Class Actions describes the core issues of the case as follows:

The complaint alleges the company’s tilapia actually comes from China where they are ‘raised in, and sourced from, large industrial fish farms known for their unsustainable production methods.’ Tilapia farms in China primarily use an ecologically dangerous method of tilapia production known as pond aquaculture in which thousands of fish are crowded into shallow ponds, the Gordon’s class action lawsuit states. 

In an August 24 Order, the presiding judge narrowed the litigant’s claims, but approved the overall class action suit. The judge has indicated that in order for the plaintiffs to prevail, they will have to demonstrate that the conditions of Gorton’s fish farm are substandard. Attorneys are now looking for anyone in New York, California, or 34 other states that bought Gorton’s Tilapia and would like to join the class action suit.

Switching gears to the UK, the UK’s Advertising Standards Authority (ASA) pulled an ad for Persil last month over unsubstantiated sustainability claims. The laundry detergent brand is owned by international company Unilever and – unlike Johnny Cash, The Rolling Stones, and punk music – the Persil ad was not banned from the BBC for frivolous reasons. Instead, it contained environmental claims ASA found too ambiguous: specifically the statement that Persil was “Tough on stains, kinder to the planet.” Here is AdWeeks’ August 30th analysis:

… the ASA’s rules state that environmental claims must be clear and supported by a high level of substantiation. It noted that statements about whether a product was ‘greener’ or ‘friendlier’ could only be justified if the product being promoted could demonstrate a total environmental benefit over historical or competitor products.

Unilever’s statement that Persil was “kinder to the planet, didn’t meet the level of clarity required by UK law primarily because it left consumers asking the question “kinder than what?” According to the ASA opinion, this statement created a level of uncertainty that is disallowed by UK law:

We considered the basis of the comparative claim ‘kinder’ was likely to be ambiguous to viewers. The ad did not state or explain the basis of the comparative claim, such as whether the advertised liquid detergents were ‘kinder’ in comparison to Persil’s own previous products or other products. While the ad highlighted the benefits of the detergents – being effective in cold and quick cycles, and the use of recycled plastic – it was not clear if those were new or recent developments, and whether they were specific to the advertised detergents or applied more widely to Persil’s range of products.’

Our View: With recent polls showing that consumers are willing to pay more for sustainable products (although whether they actually follow through with what they say in hypothetical survey situations is a completely different matter), it isn’t surprising that companies are making an effort to market their products on environmental merits. However, in an effort to capitalize on the public’s desire for sustainable goods, marketers often cut corners and ignore applicable laws. This results in greenwashing and ultimately when companies are called out by regulators for unsubstantiated claims, more harm is brought to the brand’s image, than the good of the initial advertisement. Greenwashing in advertising has been garnering the attention of both regulators and civil litigants, we’ve written about other greenwashing cases here, here, and here.

Legal departments should be reviewing all environmental claims made in advertisements and ensure that they comply with the relevant law. For companies in the US, our guidebook “Using the FTC’s Green Guides for Marketing” can help navigate the ins and outs of sustainability claims in advertising. That along with our other guidebooks can be accessed by our members here. Additionally, our checklist “Avoiding Greenwashing” is a useful tool for evaluating sustainability claims.

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The Editor

Zachary Barlow is a licensed attorney. He earned his JD from the University of Mississippi and has a bachelor’s in Public Policy Leadership. He practiced law at a mid-size firm and handled a wide variety of cases. During this time he assisted in overseeing compliance of a public entity and litigated contract disputes, gaining experience both in and outside of the courtroom. Zachary currently assists the editorial team by providing research and creating content on a spectrum of ESG… View Profile