Gore-Tex Maker Faces PFAS Greenwashing Allegations

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A proposed federal class action has been filed against W.L. Gore & Associates, accusing the company of systematically misleading customers about the sustainability of its widely used Gore-Tex Fabric.

The February 11 complaint alleges that Gore-Tex is produced using PFAS, chemicals that pose “extremely dangerous health and environmental effects” and allegedly shed from Gore-Tex during ordinary use.  Despite this, the plaintiffs argue that Gore markets the fabric as “non-toxic and safe for the user” and “environmentally sound,” creating a false impression about its safety and sustainability.

“Instead of coming clean on its use of PFAS and their environmental consequences, Gore…embark[ed] on a significant greenwashing campaign full of material misrepresentations and omissions designed to deceive eco-conscious consumers and safeguard Gore’s profits,” the complaint states.

The suit also challenges “[Perfluorinated Chemical (PFC)]* Free Laminate” claims on tags affixed to Gore-Tex products.  According to the complaint, the claim “misconstrues the common definition of the term ‘PFC’ by unilaterally excluding well-known PFC-based chemicals, such as PTFE and ePTFE,” which are PFAS allegedly used to make several Gore products—despite efforts by the company to phase out their use.

The plaintiffs allege that Gore’s practices violate laws in 28 states and DC, including consumer protection, fraudulent concealment, and unfair competition laws.  They seek damages, disgorgement, and an order enjoining Gore from continuing its allegedly unlawful business practices.

The suit comes shortly after Maryland’s Attorney General sued Gore in December 2024, alleging that Gore knowingly “polluted the air and water around its facilities with” PFAS.  Additionally, in 2022, a former employee sued Gore over health effects allegedly stemming from PFAS exposure.

Gore-Tex is used in a variety of companies’ outdoor apparel, including outerwear and athletic shoes.  According to the complaint, Gore-Tex has a 70% market share in the waterproof-breathable textile market.

The case is Mason v. W.L Gore & Associates, No. 2:25-cv-49 (E.D. Wash.).

California Sues ExxonMobil for Deceptive Marketing on Plastic Recycling

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ExxonMobil deceived the people of California by falsely promoting single-use plastics as sustainable, a complaint filed by California’s attorney general on September 23, 2024, alleges.

The lawsuit, filed in the San Francisco County Superior Court, argues that ExxonMobil conducted a “decades-long campaign of deception” to convince the public that plastics recycling was a sustainable solution to plastic waste, despite knowing that plastics recycling “is technically and economically nonviable to handle the amount of plastic waste [the company] produces.”  ExxonMobil is the largest producer of plastic polymers in the world.

“ExxonMobil’s deceptions undermined consumers’ ability to make informed choices to avoid the catastrophic harms we are experiencing,” the complaint states.  The attorney general asserts that “single-use plastic chokes our waterways, poisons our oceans, harms already endangered and threatened wildlife, blights our landscapes, contaminates the recycling stream, increases waste management costs, pollutes our drinking water, and expands landfills.”

Special focus was given in the complaint to ExxonMobil’s claims about “advanced recycling,” a collection of non-mechanical recycling technologies designed to convert certain plastic wastes into “fuels, chemicals, waxes, and petrochemical feedstock.”  According to the suit, ExxonMobil conceals several key limitations of its advanced recycling program, including that only 8% of processed waste becomes new plastic and that its “certified circular polymers” are made of “virtually no waste plastic.”

The lawsuit alleges violations of state nuisance, natural resources, water pollution, false advertisement, and unfair competition laws.  The complaint seeks abatement funds, disgorgement, and civil penalties.  California’s attorney general reportedly said they want “billions of dollars” for the abatement fund.

It has been reported that ExxonMobil responded by claiming that California officials have known for decades that their state recycling program is ineffective, arguing that the officials “failed to act, and now…seek to blame others.” The company has been quoted as asserting that “[i]nstead of suing us, they could have worked with use to fix the problem and keep plastic out of landfills.”

Irene Hantman and Philip Moffat Present on Green Marketing at PSX 2024

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Verdant Law is pleased to announce that Irene Hantman and Philip Moffat presented on green marketing and product stewardship at the PSX 2024 conference in Denver.  Their October 16 presentation covered greenwashing, US regulation of green marketing, and enforcement and litigation.

Green marketing is on the rise, partly because consumers are willing to pay more for “green” products. However, many green marketing claims are overstated.  In the presentation, Ms. Hantman and Mr. Moffat described the various ways in which green marketing claims can be misleading and the potential consequences of deceptive marketing.

Special focus was given to the Green Guides, guidance published by the Federal Trade Commission (FTC) that helps advertisers avoid making unfair or deceptive claims.  While the Green Guides are non-binding, they provide insight into what advertising claims the FTC may determine to be illegal.  The presentation noted that the FTC is considering whether the Green Guides should be codified as rules and whether the commission should revisit its guidance for terms like “recyclable” and “degradable.”

The presentation also covered notable enforcement actions and litigation pertaining to green marking, including California’s recent suit against ExxonMobil for deceptive public messaging about plastic recycling.  Ms. Hantman and Mr. Moffat concluded by emphasizing the importance of developing green marketing claims that are clear, specific, and substantiated with evidence.

PSX is an annual conference hosted by the Product Stewardship Society.  According to its website, PSX is “the most comprehensive leadership forum for strategies that guide product stewardship professionals in an ever-changing global economy.”  Ms. Hantman serves on the PSX Conference Program Committee.

If you have any questions about the presentation, please contact Ms. Hantman or Mr. Moffat.

Class Action Against Coca-Cola for “100% Recyclable” Claims Advances

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A proposed class action against Coca-Cola and other companies selling bottled water can proceed after the plaintiffs provided survey results indicating that consumers may be misled by Coca-Cola’s recyclability claims, the Northern District of California ruled in the case Swartz v. The Coca-Cola Co., No. 3:21-cv-04643.

Crucial to the case are the Federal Trade Commission’s Green Guides, which provide guidance for environmental marketing claims and are codified into California law.  The Green Guides allow marketers to make unqualified recyclable claims “if the entire product or package, excluding minor incidental components, is recyclable” by facilities available to “at least 60 percent” of Californians.

The plaintiffs initially alleged that the defendants’ “100% Recyclable” claims are false and misleading because most of the bottles are not recycled in practice.  The judge rejected that argument, stating that reasonable consumers would not understand the claims “to mean that the entire product will always be recycled.”  The plaintiff’s next complaint placed greater emphasis on the bottles’ caps and labels, which are allegedly not recyclable.  However, the court found inadequate factual support for their claims, which were also undermined because bottle caps and labels constitute minor components under the Green Guides.

The plaintiffs’ newest complaint overcomes those shortfalls, Judge James Donato ruled on April 8, 2024.  The survey results indicate that consumers understand the defendant’s claims to mean the entire bottle (including bottle caps and labels) are recyclable, and the defendants “expressly qualify” their recyclability as “100%.”  As a result, the plaintiffs can plausibly allege that “these representations to consumers are different from” unqualified claims protected by the Green Guides, he said.

The court also determined that there was sufficient factual support for the plaintiffs’ deception claims to move forward.  Because the defendant’s product labels are “disposed of as refuse” by facilities responsible for over 40% of the relevant type of bottle recycling in California, it is plausible that the “defendant’s products are not capable of being ‘100%’ recycled by plants in California,” the court ruled.

The lawsuit consolidates actions brought separately by consumers and the Sierra Club.  In addition to Coca-Cola, the suit names BlueTriton Brands and Niagara Bottling as defendants.  Between the three companies, water bottles are sold under the brand labels Dasani, Deer Park, Poland Spring, Niagara, Kirkland Signature, and others.

 

Judge Denies Motion to Dismiss in Colgate Toothpaste Greenwashing Case

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A suit alleging that the Colgate-Palmolive Company (“Colgate”) misrepresented toothpaste tubes as recyclable will be allowed to proceed, the U.S. District Court for the Northern District of California ruled on February 6, 2024.

The case, Della v. Colgate-Palmolive Company, 2024 WL 457798, concerns recycling claims featured by the company’s Colgate and Tom’s of Maine-branded toothpaste tubes.  Made entirely of plastic, these tubes are theoretically less difficult to recycle than “traditional” toothpaste tubes.  The plaintiffs allege, however, that these claims would mislead a reasonable consumer.  According to the plaintiffs, the tubes are universally rejected by recycling facilities because facilities are unable to distinguish between Colgate’s tubes and traditional tubes and because the tubes cannot be fully emptied of toothpaste, which acts as a contaminant in the recycling process.

Colgate moved to dismiss, arguing that its claims were not misleading because the composition of its toothpaste tubes is compatible with a recycling stream that is available to most Californians.  In other words, the recyclability claims were accurate because the tubes are intrinsically capable of being recycled even if they are not recycled every time they are placed in a recycling bin.  Colgate also pointed to a statement on the packaging inviting consumers to “learn more” on their websites, which provided more comprehensive information about the products’ recyclability.

Magistrate Judge Joseph C. Spero rejected Colgate’s arguments.  Common sense would not lead a consumer to believe that a product labelled as recyclable would not be recyclable anywhere, he said.  He also stated that the invitation for consumers to learn more online would not remedy a misleading statement on the packaging, writing that “courts are generally reluctant to charge a reasonable consumer with the obligation of reviewing product websites or other written product materials before purchasing the product.”

More information on the case can be found in a previous Verdant Law blog post.

Summary Judgment Denied in “Krud Kutter” Greenwashing Class Suit

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A class action suit alleging that Rust-Oleum Corporation mislabeled products as “non-toxic” and “Earth friendly” can go to trial, the U.S. District Court for the Northern District of California ruled on January 26, 2024.

The case, Bush v. Rust-Oleum Corp., No. 3:20-cv-03268, concerns the environmental claims made on the labels of Rust-Oleum’s “Krud Kutter” cleaning products.  Plaintiff Anthony Bush alleges that the claims would lead a reasonable consumer to believe that the products do not contain ingredients that are harmful to humans, animals, or the environment.  Bush alleges that these claims are misleading because the products contain multiple ingredients that are known to cause toxic effects.

Rust-Oleum moved for summary judgment, pointing to testimony given by the plaintiff and his expert toxicologist in which they acknowledged that risk can never be fully eliminated; even water can be hazardous in excess.  Rust-Oleum argued that this evidence shows that a reasonable consumer would not believe that the products are completely risk-free.  In addition, Rust-Oleum contended that the labels themselves contradicted the plaintiff’s theory of deception: the phrase “Caution: Eye and Skin Irritant” is included next to the words “Non-Toxic,” and the rear of the products’ labels include a definition of the “Earth friendly” claim.

Judge Laurel Beeler rejected Rust-Oleum’s arguments, saying that “[d]eposition testimony of individuals…is at best anecdotal evidence that isn’t dispositive of how a reasonable consumer interprets the challenged claims.”  Beeler also found that genuine disputes of material fact exist regarding the qualifying language included on the products’ label.  The plaintiff’s expert toxicologist alleges toxic effects besides eye and skin irritation and the defendant’s own surveys show that most customers do not read the small font explanation of the “Earth friendly” claim, she said.

Also at issue in the case are the Federal Trade Commission’s Green Guides, which help marketers avoid making misleading environmental claims.  Bush cited the Green Guides’ commentary on the phrase “non-toxic”—“[a] non-toxic claim likely conveys that a product, package, or service is non-toxic both for humans and for the environment generally”—in his complaint, but Beeler agreed with Rust-Oleum that the Green Guides are not decisive under the reasonable-consumer test.

California to Require Substantiation of Carbon Neutral Claims

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Under a new California law enacted on October 7, 2023, companies selling carbon offsets or making carbon-neutral claims must now provide evidence to substantiate these measures and claims.

The law requires that businesses marketing carbon offsets disclose specific information on their websites.  This includes details on how emissions reductions were estimated, data and calculation methods to verify these estimates, whether there is third-party oversight, and the accountability measures in place if the project is not completed or proves to be less effective than advertised.  Companies that buy offsets will be required to provide an overview of each offset, including the business that sold the offset, on their websites.

In addition, the measure requires companies that claim to be carbon neutral or claim that they have made significant emissions reductions to support their claims with all available evidence.  Companies must also disclose whether there is third-party oversight of their claims or supporting data.

The law, which is reportedly the first of its kind in the US, authorizes fines of up to $500,000 per violation.  In a press release, the law’s author characterized the legislation as providing necessary transparency amid concerns about corporate greenwashing and the effectiveness of many carbon offsets.

Colgate Faces False Advertisement Suit Over Recyclable Claims

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A class action lawsuit has been filed in a California federal court against the Colgate-Palmolive Company (“Colgate”), alleging the company falsely advertises its Colgate and Tom’s of Maine branded toothpaste tubes as recyclable. The complaint alleges that Colgate’s claims are a violation of the Federal Trade Commission’s Green Guides, which prohibits a product from being called recyclable “unless there is an established recycling program, municipal or private, through which the product will be converted into, or used in, another product or package.”

The complaint also alleges California Business and Professions Code violations, which make it “unlawful for any person to make untruthful, deceptive, or misleading environmental marketing claims.”

A number of Colgate branded products, including but not limited to its popular products Colgate MaxFresh Toothpaste, Colgate Optic White Toothpaste, and Colgate Sensitive Toothpaste, feature the three-arrow recycling symbol atop the language “Recyclable Tube.” The company’s Tom’s of Maine product packaging advertises its toothpaste tubes as “The First of its Kind Recyclable Tube.” This language is used on over ten of its toothpaste products. None of the packaging of these products, Colgate or Tom’s of Maine, includes language that limits or qualifies the recyclability claims.

Additional recyclability claims are made on the brands’ websites. The Tom’s of Maine website features the following claims, which the Plaintiff alleges are misrepresentations:

  • “Recyclable Tube”
  • “Recycle Me!”
  • “Buy Smart – By reaching for this toothpaste tube you’re actively making a difference.”
  • “Recycle It – Our recyclable tube is not meant for a landfill – it gets turned into useful products.”
  • “As the leaders in the oral care industry, we wanted to create a recyclable alternative.”

While the toothpaste tubes are theoretically recyclable, a consultant at the Association of Plastic Recyclers stated, “[f]or many facilities in the US, the company’s new recyclable tubes are indistinguishable from those made from more common plastics, prompting recyclers to reject them. The old tubes could cause contamination if consumers put them in the recycling bin, so it’s easier for recycling facilities to reject toothpaste tubes across the board.”

In support of its argument, the complaint cites a recent Bloomberg article discussing the accuracy of Colgate’s claims with two solid waste management companies operating in California. (The two companies, Waste Management, Inc. and Republic Services, account for more than 40 percent of recycling services provided to consumers in California and about 25 percent of the recycling services on a national scale.) The companies highlighted that toothpaste tubes “are not in its list of acceptable items” and that there is serious concern about contamination from leftover toothpaste that remains in the tube.

According to the complaint, Colgate is fully aware that its products end up in landfills or are incinerated because recycling facilities do not accept its products. Colgate has even gone so far as to release a video on its website stating as much and explaining that the company is “continu[ing] the work beyond technically recyclable toward acceptance of tubes in recycling centers.” If recycling centers do not accept toothpaste tubes, their recyclability is irrelevant, and labeling and advertising their products as recyclable is false, misleading, and deceptive to consumers and members of the public seeking to make environmentally conscious purchasing decisions.

Plaintiffs seek an injunction on the sale of these products until such time the labeling and advertising language can be modified to remove recyclability language or alternatively to include a qualified claim that accurately states the availability of recycling programs. To be in compliance with the Green Guides’ environmental marketing requirements, a company is only permitted to make unqualified recyclable claims “[w]hen recycling facilities are available to a substantial majority of consumers or communities where the item is sold.” The Guides further clarify a substantial majority to mean at least 60 percent, and that “[w]hen recycling facilities are available to less than a substantial majority of consumers or communities where the item is sold, marketers should qualify all recyclable claims.”

Additionally, Plaintiffs are seeking compensatory and statutory damages.

Better Business Bureau Challenge Results in Clarifying Disclosure in Antimicrobial Toilet Seat Advertising

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Business Bureau (BBB) National Programs develops self-regulatory industry programs and resolves disputes on issues including advertising and privacy.  According to BBB National Programs, National Advertising Division (NAD) case decisions “represent the single largest body of advertising law in the country.”

A recent NAD case concerned antimicrobial claims made by Ginsey Industries, Inc. (“Ginsey”) on its Clorox-branded toilet seats.  Bemis Manufacturing Company challenged elements of these claims (though not the product’s antimicrobial efficacy).  During the challenge, Ginsey voluntarily committed to add a disclosure acknowledging that the product does not protect uses against bacteria and remove an “antimicrobial checkmark image inside the Clorox chevron logo.”

NAD additionally recommended that Ginsey modify its website to display the disclosure statement more conspicuously and work with retailers to do the same with their websites.  In response, the company stated that while it disagrees that “further modifications to its online product listings are necessary to protect consumers,” it would comply with NAD’s decision.

Walmart and Reynolds Sued Over Recyclable Plastic Bag Marketing Claim

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The State Attorney General of Minnesota has filed a lawsuit against Walmart Inc. and Reynolds Consumer Products Inc. (the owner of the trash bag trademark “Hefty”) for falsely marketing their plastic bags as recyclable. The Complaint alleges violations of Minnesota’s Prevention of Consumer Fraud Protection Act, Deceptive Trade Practices Act, False Statement in Advertising Act, and deceptive environmental marketing claim regulations.

These statutes utilize language explicitly prohibiting the use and dissemination of false, deceptive, or misleading statements. For example, Minnesota’s False Statement in Advertising Act strictly prohibits advertising that contains any material assertion, representation, or statement of fact that is untrue, deceptive, or misleading. Minnesota’s Deceptive Trade Practices Act further states:

“A person engages in a deceptive trade practice when …the person … represents that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have….” (emphasis added).

Defendants, through their product labeling, advertised their products as recyclable, which was false.  In addition, their actions disqualified the recyclable contents of the plastic bags from being recycled. In Minnesota, when recyclable materials or products are placed in non-recyclable bags on the curb, waste management will render the contents of the entire bag unrecyclable, leading both the bag and its contents to end up in landfills.

Additionally, the Complaint alleges deceptive environmental marketing claims by Walmart, citing the Federal Trade Commission’s (“FTCs”) Guides for the Use of Environmental Marketing Claims (also referred to as the “Green Guides”). The Green Guides state, “it is deceptive to misrepresent, directly or by implication, that a product or package is recyclable. A product or package should not be marketed as recyclable unless it can be collected, separated, or otherwise recovered from the waste stream through an established recycling program for reuse or use in manufacturing or assembling another item.” Minnesota recycling facilities cannot process the Hefty brand plastic trash bags labeled as recyclable); in fact, they can cause machine malfunctions and even serious damage.

The Complaint asked the court to order a stop on the sale of these products as marketed. Further, the Complaint requests that the court order the defendants to fund a program to educate Minnesota residents about recyclable materials.

This is not the only lawsuit related to Hefty’s recycling bags. Last year Connecticut’s Attorney General filed a lawsuit against the manufacturer, Reynolds, alleging the company has falsely and deceptively marketed the same Hefty recycling at issue in the Minnesota case. The Complaint states that Reynolds has marketed and sold these bags “despite full knowledge that their bags were incompatible with recycling facilities in Connecticut.” This case is still being litigated.