US: Another US federal court issues decision on greenwashing claims, highlighting growing complexity in evaluating sustainability claims

Last week, a federal district court in Illinois addressed greenwashing claims arising from a putative class action lawsuit alleging that a popular supermarket chain made deceptive sustainability marketing claims about its Atlantic salmon products.  (Rawson v. Aldi, Case No. 1:21-cv-02811, ECF No. 40, the "Opinion").  The Illinois decision comes on the heels of a decision by a federal district court in New York dismissing greenwashing claims against a popular footwear company (see our post here).

The plaintiff in the Illinois lawsuit alleges that the phrase “Simple. Sustainable. Seafood.” on the defendant’s packaging of Atlantic salmon led consumers to believe incorrectly that the salmon were farmed in accordance with high environmental and animal welfare standards. The Plaintiff alleges that the “Sustainable” claim is “greenwashing” because the defendant’s salmon farming methods are unsustainable and ecologically damaging; that the defendant uses a preservative fish feed, posing risk for aquatic life; and that the defendant’s suppliers' activities add to the collapse of wild fish stock and the aquatic ecosystem.

The Court carefully assessed the plaintiff’s allegations and permitted certain claims to proceed, but not others.  The Court ruled that the plaintiff’s claims under the New York General Business Law (the same law invoked by the plaintiff in the footwear company case) and for breach of express warranty may proceed.  The Court also allowed the plaintiff’s claims under the consumer protection statutes of 33 other states to proceed, but halted discovery pending a future decision on class certification. Finally, the Court rejected the plaintiff’s unjust enrichment claim and request for injunctive relief.

The Court’s decision focused on a number of interesting arguments regarding the “Simple. Sustainable. Seafood.” claim:

• Use of a secondary certification label to qualify the sustainability claim: The Court disagreed with the defendant’s contention that its “Simple. Sustainable. Seafood.” label was not misleading when read in context with the product’s (separate) “Best Aquaculture Practices” (“BAP”) certification label, which reflects that the product was certified by an independent third-party. The Court noted that the “BAP” label and defendant’s sustainability representation were not next to each other, and were separated by color, design, and space on the package, making it unlikely that a customer would connect them. In addition, the Court found that the labels’ text does not indicate that they are in any way connected, such that the certification label could not be deemed to clarify the representation regarding sustainability.
• Non-actionable puffery: The Court also disagreed that defendant’s sustainability claim was non-actionable puffery (i.e., “an exaggeration or overstatement expressed in broad, vague, and commendatory language” that a “reasonable consumer would not interpret as a factual claim upon which he could rely”) (Opinion at 6). The Court looked to the Green Guides released by the Federal Trade Commission (which provide guidance on the use of environmental and sustainability related claims), and concluded that “a reasonable inference can be made that [defendant’s] sustainable claim advertises certain environmental benefits, … and is actionable as non-puffery” (Opinion at 7).

The Opinion provides yet another example of the type of fact-specific analysis that U.S. courts are increasingly being asked to perform, parsing through specific language and design choices, in deciding whether sustainability-related claims make out viable lawsuits premised on “greenwashing.” 

Companies that market their products as sustainable or green, whether on packaging or in other materials aimed at consumers and the general public, should continue to monitor these trends to ensure compliance with applicable consumer protection laws and best practices.