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

Before the holidays, Zach wrote that the UK’s Competition and Markets Authority (CMA) is investigating “green” claims made by consumer goods company Unilever.  Among the matters being considered is “Unilever’s use of colors and imagery – such as green leaves – may create the overall impression that some products are more environmentally friendly than they actually are.” A new US lawsuit filed against candy company Hershey’s initially seems unrelated, but warrants closer examination. According to this from, Reese’s Halloween peanut butter cups did not match the “‘cute’ carving of a pumpkin’s mouth and eyes, as pictured on the product’s packaging.” As a result, a consumer

“filed a lawsuit against Hershey, the maker of Reese’s, alleging the company falsely represented several of its holiday-themed products on packaging… The lawsuit, filed in federal court in Florida, seeks class-action status on behalf of ‘numerous consumers [who] have been tricked and misled by the pictures on the Products’ packaging’ … For a judge or jury to side with the plaintiffs in false advertising claims, lawyers have to successfully make the case that the ads would trick a ‘reasonable consumer.'”

While the Hershey’s suit is not directly related to product sustainability or ESG, a ruling against the company in this matter could be problematic. The Federal Trade Commission’s Green Guides are still being reviewed and updated – hopefully to be issued soon. Until those are issued and provide clarity on product “green” or sustainability messaging on packaging, companies should be cautious about sending a stronger signal that judges, juries and regulators feel “would trick a ‘reasonable consumer.'” Even changing or adding the color green to traditional packaging could be interpreted in this way.

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Photo credit: sheilaf2002 –

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The Editor

Lawrence Heim has been practicing in the field of ESG management for almost 40 years. He began his career as a legal assistant in the Environmental Practice of Vinson & Elkins working for a partner who is nationally recognized and an adjunct professor of environmental law at the University of Texas Law School. He moved into technical environmental consulting with ENSR Consulting & Engineering at the height of environmental regulatory development, working across a range of disciplines. He was one… View Profile