As consumer interest in climate change and sustainability continues to evolve, a rise in “green bleaching” claims against fashion retailers has generated a series of headline-grabbing lawsuits. Over the past year, the fashion industry has become the target of consumer class action lawsuits, as well as state and federal investigations, for sustainability representations by major fashion retailers. This trend is likely to continue as more consumers become environmentally conscious, demanding more environmentally friendly products and sustainable business practices, creating a need for companies to increase their efforts. sustainable development or lose market share.
Background. In recent years, allegations of “green laundering” have played many different roles, but at their core remain allegations of fraud, false advertising and fraudulent misrepresentation. Plaintiffs’ attorneys seeking financial fallout from large class action settlements or jury decisions are targeting large, well-known retailers with such allegations of fraud. As discussed in more detail below, foreign companies such as H&M are a prime target due to their prominence in the retail market, as well as the European Union’s more active pursuit of environmental sustainability. .
“Greenwashing” claims are most often made when a retailer makes a public statement, advertisement, or product labeling that includes representations of sustainability designed to appeal to environmentally conscious consumers. “Greenwashing” within the fashion industry has most often been seen with companies making affirmative claims about their “sustainability” efforts and with companies advertising or labeling their products using words that targeted fashions, including but not limited to ‘eco-friendly’, ‘recycled’, ‘organic’, ‘natural’ and ‘sustainable’ – so-called ‘eco-washed products’.
To date, “green laundering” litigation has been most prevalent in California due to California’s plaintiff-friendly consumer protection laws, which violated California’s Unfair Competition Act, consumers, false advertising laws and other common law fraud claims. However, as “green laundering” litigation becomes more widespread, other states are expected to see an increase in similar types of lawsuits, as recently seen in New York and Missouri.
Fashion lawsuits. Commodore versus H&M (New York)1 was the first alleged class action lawsuit brought against Swedish fashion giant H&M over its use of Higg Sustainability labels on clothing. The plaintiffs claimed that H&M used the Higg scoreboards to justify charging high prices for its “sustainably produced” clothes – known as the H&M Conscious Collection – arguing that these products are “no more sustainable than items in [H&M’s] main collection, which are also not durable. The claims in this lawsuit illustrate the potential pitfalls that unverified sustainability and “green” representations can lead to. Additionally, H&M has made these sustainability claims specific and straightforward, displaying them on its products by issuing “environmental scorecards” and “eco-friendly” labels. Although this case is still in its early stages, the court has set the disclosure timeline for H&M’s motion to dismiss on February 23, 2023. Although it is not yet clear exactly how H&M may respond to Complainant’s argument, as with other false advertising claims, H&M’s best defense may be the truth – and pointing to publicly available data and records supporting its line of “sustainably produced” clothing should suffice for quick dismissal.
Lisama versus H&M (MO)2 marks the second putative class action lawsuit against H&M, alleging similarly that “H&M’s representations that [its] Products are a “conscious choice”, more “sustainable” and environmentally friendly…” are “false and misleading representations”. Notably, this case not only included the typical “green money” causes of action (false advertising, deceptive acts and practices, unjust enrichment, etc.), but also included five counts of violation of the Missouri Merchandising Practices (MMPA). On December 6, 2022, H&M filed a motion to dismiss, arguing that plaintiffs had failed to plead sufficient facts alleging false advertising related to the H&M Conscious Collection. Specifically, H&M’s petition alleges that H&M merely makes comparative claims that the materials in its products are “more durable” than their regular clothing line, and because H&M uses comparative language, a reasonable consumer would not be misled. on whether the garments were entirely durable or more durable than its competitors. Furthermore, H&M argues that the plaintiffs suffered no loss because the customers purchased the clothes from the Conscious collection, and the clothes were in fact part of that collection. To date, no response or court order has been filed.
Examples of recent layoffs linked to “greenwashing” fashion disputes include Lin versus Canada Goose3, a class action lawsuit filed in New York, where plaintiffs alleged several violations of New York general commercial law and common law based on Canada Goose’s marketing and advertising of its fur as enduring claims and certain environmental ones. Specifically, the Plaintiffs rely on Canada Goose’s representations that “[t]he Canada Goose Fur Transparency StandardTM is our commitment to support the ethical, responsible and sustainable sourcing and use of real fur” and “[t]The standard certifies that we never buy fur from fur farms, never use fur from endangered animals, and only buy fur from licensed North American trappers strictly regulated by the state, provincial and federal standards. On November 14, 2022, the court dismissed the complaint in its entirety, without specifically addressing any of Canada Goose’s environmental claims, as the complaint alleged several misrepresentations under New York law, which the plaintiffs failed to sufficiently plead. .
In the same way, Dwyer vs. Allbirds4, a class action lawsuit filed in New York, shows how product lifecycle suitability claims could lead to “greenwashing” claims. In this case, the plaintiffs alleged that Allbirds misrepresented the environmental impact of its wool shoes, as described using a life cycle assessment tool to estimate the carbon footprint. of the product and its durability index. Specifically, the plaintiffs attacking Allbirds’ statement that “the average footprint of [Allbirds’] products is 7.6 kg of CO2e” and about them working “with leading organizations like ZQ Merino to ensure our wool meets high standards in agriculture, land management and welfare. to be animal. On April 21, 2022, the court dismissed the suit, finding that Allbirds’ statements regarding its use of the measurements were factually accurate and would not mislead a reasonable consumer. Notably, the court declined to question the quality of the measurements themselves.
Take away food. One lesson to be learned from these fashion-related “greenwashing” lawsuits is that all fashion brands should consider tightening the language used in their marketing efforts around sustainability, especially if they are making very strong claims. specific. Additionally, companies should avoid broad and sweeping statements about their sustainability efforts and avoid labeling products as “sustainable” without hard evidence or independent verification. Like all misrepresentation claims, the truth is the best defense. Before making representations and labeling products, companies should strive to conduct diligent studies and investigations – better able to back up their sustainability claims with hard company data, thus becoming better at even to neutralize and defend the “green laundering” claims that are currently flooding US litigation. landscape.
1 Commodore et al c. H&MCase No. 7:22-cv-06247 (SDNY July 22, 2022).
2 Lizama et al c. H&M, no. 4:22-cv-01170 (ED Monday, November 3, 2022).
3 Lin versus Canada Goose United States, No. 1:21-cv-07614 (SDNY 12 September 2021).
4 Dwyer v. Allbirds, Inc., No. 7:21-cv-05238 (SDNY 13 June 2021).