Alert: Uptick of Consumer Claims Against Allegedly Misleading Green Advertising

By Bao M. Vu, of Counsel, Stoel Rives LLP. 

In a prior article, we wrote about how to comply with the Federal Trade Commission’s “Guides for the Use of Environmental Marketing Claims,” commonly referred to as the “Green Guides.”  At the time, there had been a history of consumer claims based on such marketing for food products, but relatively few consumer claims involving consumer products, including clothing.  The principal risk that consumer product brands faced at the time included risk of claims by government enforcers, such as the FTC or local prosecutors, and competitors before the Better Business Bureau’s National Advertising Division.  

Recently, however, there has been an uptick of consumer claims against brands for allegedly misleading green advertising.  One of those claims is discussed below, which highlights the leeway courts often give to creative plaintiffs’ lawyers and, consequently, the pressing need for immediate review of any marketing claims such as “environmentally friendly,” “non-toxic,” “eco-friendly,” and the like. 

In the case Maisal v. S.C. Johnson & Son Inc., filed in federal court in California, the court issued a ruling in May 2021 that allowed a plaintiff’s lawsuit to move forward against the marketer (N.D. Cal. Case No. 21-cv-00413-TSH).  There, the plaintiff alleged that the manufacturer violated various consumer-fraud laws by selling its “Ecover” line of cleaning products with the following claims: “Plant-based ingredients”; “With plant-based ingredients”; “Plant-based & mineral ingredients”; or “With plant-based and mineral ingredients.”

The plaintiff claimed that the manufacturer also “reinforces the plant-based representations” with the following label statements”:

• “Get nature on your side”;
• “Made using renewable plant-based ingredients”;
• “Made using renewable plant-based ingredients” or “Made using renewable plant-based & mineral ingredients”; “At Ecover, we have been pioneering green science for over 30 years to make effective,
• Plant-based cleaners by planet-loving people”;
• An image of a flower above the “e” and “c” in the Ecover brand name; and
• An image of a leaf above the plant-based representations with a dotted line connecting the representation and leaf.

Notably, there was no express claim that the Ecover products contained only plant- or mineral-based ingredients.  Indeed, the products each carried an ingredient list that had mainly plant- or mineral-based ingredients, and some that did not fall into those categories. 

Nevertheless, according to the plaintiff, all the representations combined led her to believe that the products “only contain ingredients that come from plants and/or from plant and minerals, and that are not subject to chemical modification or processing which materially alters the ingredients’ original plant-based or mineral composition.” 

Despite recognizing that “the products do not make any objective representations about the amount of plant-based and mineral ingredients,” the court nevertheless concluded that “it is plausible that a reasonable consumer could be deceived into thinking the products only contain ingredients that come from plants and/or plants and minerals.”  What’s more, in this context, the court stated that “a reasonable consumer is not expected to pick up the product and examine the fine print on the ingredient list.”  Accordingly, the court allowed the lawsuit to proceed, which likely meant costly attorneys’ fees and costs related to discovery and other matters for the defendant.

While the court’s conclusions and basis for the same are subject to dispute for a variety of reasons, including on the ground they are not consistent with applicable case law or relevant legal standards, this opinion is one of a few recent cases that sided with consumers challenging environmental marketing claims in the consumer product context.  It and other similar, recent cases serve as a reminder to carefully audit your environmental marketing claims and the supporting substantiation to determine if prominent disclaimers or rewording is needed to reduce the potential of costly legal exposure.  In doing so, marketers need to consider the messages conveyed by the packaging as a whole, not just the specific claim in isolation. 

About the Author:  Bao M. Vu is a Partner with the law firm Stoel Rives LLP.  He regularly advises clients on compliance with complex consumer protection and environmental statutes and regulations.  More information about his practice can be found here.  Bao routinely provides free consultations to RVCF members, and he can be reached at bao.vu@stoel.com or 415-500-6572.