Delta Airlines Sued for Greenwashing Making Carbon Neutral Claims

Delta Airlines is the latest company to face a greenwashing class action lawsuit. The complaint alleges that the company has misled its customers by making carbon neutral claims. According to the complaint, Delta advertises that it has been carbon-neutral since March 2020; however, because Delta is using carbon offsets to achieve this, the complaint alleges that the company is making representations that are “manifestly and provably false.”

While on paper the purchase of carbon offsets should account for Delta’s global emissions, the complaint claims that issues exist with the accuracy and reliability of offsets issued by a voluntary carbon offset market. The complaint alleges that the voluntary offset market is comprised of “a loose arrangement of companies and NGOs that facilitate investment in green projects such as renewable energy and prevention of deforestation,” but that these carbon neutral projects have foundational issues such as inaccurate and speculative accounting of true carbon offsets, and the fact that many of these projects were scheduled and would have occurred regardless of participating carbon offset programs. Therefore, Delta’s claims “hinge[] on an underlying set of representations” that Plaintiff asserts are “manifestly and provably false.”

The complaint purports that “both scientists and government regulators have specifically identified [Delta] as one of many companies who have grossly misstated the actual carbon reduction produced by their carbon offset portfolio.” If these allegations are true, this would mean that, in reality, Delta is not fully carbon neutral, as the offsets it purchases are not accurately measured.

The Plaintiff alleges the carbon neutral claims are false and misleading and that consumers would not have purchased tickets on Delta flights at all or would have paid substantially less for them had they been aware the claims were false. This assertion is consistent with the increasing trend of consumers paying market premiums for greener products and services, i.e., products and services that have a smaller carbon footprint than competitors or no carbon footprint.

This complaint was brought pursuant to California’s Consumers Legal Remedies Act and California’s False Advertising, Business and Professions Code, which prohibits improper representations regarding the sale and source, sponsorship, approval, or certification of the services sold.

ASTM International Publishes Case Study on Standards for Biodegradable Plastic

ASTM International, in celebration of its 125th anniversary, solicited case studies from committee members to showcase standards that have had a significant impact on society. One of the winning entries highlights a set of standards for biodegradable plastic from Committee D20 on Plastics. Two companion specification standards for compostable plastics and paper coatings have been established to promote environmentally responsible end-of-life solutions. These ASTM standards, D6400 and D6868, respectively, are crucial for gaining acceptance in the marketplace and regulatory bodies in states such as California, Washington, Minnesota, Rhode Island, and Connecticut. The plastics industry exclusively uses D6400 and D6868 for making biodegradability claims under industrial composting conditions, and these standards also serve as the basis for certifications issued by U.S. and European organizations. Many stakeholders require that compostable products meet D6400 for plastics and D6868 for coatings on paper, and industrial composters also demand adherence to these standards for the products applicable to composting

Danone Waters Sued Over Label’s “Carbon Neutral” Statements

A class action suit was recently brought against Danone Waters of America Inc. The company sells bottled water worldwide under various brand names, including Aqua, Bonafont, and Evian. The lawsuit is specific to its Evian-branded water, which petitioners allege is deceptively and factually inaccurately marketed as “carbon neutral,” a practice referred to as “greenwashing.” The Petitioners’ suit claims violations of California’s Consumer Legal Remedies Act, New York’s Business Law sections on consumer protection and false advertising, as well as breach of express warranty, breach of implied warranty, unjust enrichment, and fraud.

The Complaint states technical definition of carbon neutral is a product “having or resulting in no net addition of carbon dioxide into the atmosphere.” (Citing Carbon-neutral, MERRIAM-WEBSTER (2022); see also A Beginner’s Guide to Climate Neutrality, UNITED NATIONS CLIMATE CHANGE, (Feb. 26, 2021), Evian labels and packaging do not include a definition of carbon neutral or direct consumers to its website for further information. Petitioners believe that reasonable consumers reading an Evian label would interpret the carbon neutral claim to mean that the manufacturing process does not create carbon emissions, which is factually inaccurate. Beyond the manufacturing process, it has also been found that the companies Danone utilizes to transport its Evian products are not carbon neutral.

Danone will likely argue that many interpret carbon neutrality to include carbon credits which a company can purchase to offset its carbon emissions. Rather than reducing or eliminating emissions, Danone founded and contributed funds to Livelihood Carbon Funds, which invests in agroforestry projects. Instead of a monetary return on investment, Danone will receive credits that, at least theoretically, offset carbon emissions. Petitioners claim that because the offsets created by these agroforestry programs won’t be realized for decades, Danone cannot make a successful carbon offsetting counterargument.

The case is ongoing in the U.S. District Court, Southern District of New York. The full docket can be found here.

Federal Trade Commission Seeks Comment on Green Guides

The Federal Trade Commission (FTC) released a request for public comment on updating its  Guides for the Use of Environmental Marketing Claims (“Green Guides”), which provides guidelines for businesses that want to use environmental marketing claims in their advertising and labeling. The Green Guides aim to help businesses avoid making deceptive or misleading environmental. This includes assisting businesses in determining how consumers are likely to interpret specific claims and how to substantiate environmental claims.  In addition, the Green Guides present options for qualifying claims to avoid deception.

The Commission reviews the Green Guides every ten years, with the last review occurring in. Accordingly, FTC is now seeking comments on the Green Guides to ensure they continue providing helpful guidance for businesses and consumers.

In its request for public comment, the Commission has requested feedback by providing approximately 40 questions as prompts. The questions focus on what FTC Chair Lina M. Khan describes as “relatively emerging environmental topics” and businesses’ views on the Green Guides’ value. Topics include:

  • The use of environmental marketing claims in the context of emerging technologies and market trends, such as ozone friendly/safe, carbon offsets, recyclability, and energy efficiency, and whether the Green Guides should be updated in addressing these areas.
  • The impact of the Green Guides on small businesses, including any challenges or benefits that small businesses have experienced as a result of following the guidelines.
  • The extent to which the Green Guides are consistent with international guidelines and standards for environmental marketing claims.
  • Any additional guidance or clarification that the FTC could provide to help businesses make accurate and non-deceptive environmental marketing claims.

FTC also asks for comment on whether the Guides overlap or conflict with other federal, state, or local laws or regulations, and if so, how?

Additionally, the Commission requests comments on the Guides’ interaction with other environmental marketing regulations and whether the Commission should consider rulemaking to establish independently enforceable requirements related to unfair and deceptive environmental claims.

The Federal Register notice also discusses the types of information that the Commission would find helpful regarding specific environmental marketing claims, including carbon offsets and climate change, degradable, and recyclable.

The Agency is accepting comments until February 21, 2023. You can submit your comments online here.

Partnering with EPA's Design for Environment at Walmart Sustainable Products Expo.

EPA is a significant partner to companies leading innovation efforts in the arena of safer consumer products, according to Assistant Administrator Jim Jones, of EPA’s Office of Chemical Safety and Pollution Prevention. In a blog post yesterday, Jones describes how EPA’s Design for Environment (DfE) program recently participated in a “Supplier Panel on Sustainable Chemistry” at Walmart’s first ever Sustainable Products Expo, which brought together leaders from EPA, NGOs, and product manufacturers.

As we have previously discussed, EPA’s DfE program – which establishes voluntary sustainability-related standards for consumer products like household cleaners – plays a major role in Walmart’s Sustainable Chemistry Initiative. Jones writes that EPA’s contribution is “providing scientific expertise and understanding of health and environmental impacts throughout the supply chain, educating consumers and companies alike, and bringing people to the table to stimulate dialogue and partnerships.” Jones notes that with “growing consumer recognition” and trust for the DfE’s “Safer Products” label and program criteria, EPA’s partnerships with companies like Walmart and its participating suppliers can promote sustainability, health, and the environment while meeting consumer demand and growing their business.

The Expo also featured announcements from Walmart and its suppliers of various new sustainability commitments and initiatives. One such initiative is the Closed Loop Fund, which will invest $100 million seeded from suppliers including Coca-Cola, Pepsico, and Johnson & Johnson in recycling infrastructure with the goal of “transforming the recycling system in the United States.” Cargill made commitments to increase supply chain transparency in beef and Procter & Gamble pledged to reduce water use for liquid laundry detergent. Together, the suppliers participating across all of these voluntary sustainability efforts account for over $100 billion in sales at Walmart.

A first look at EPA’s draft guidelines for greener government purchasing.

On November 20, EPA released its Draft Guidelines for federal government procurement of greener products. Because the federal government purchases more than $500 billion per year in goods and services, changes in federal procurement policy can have broad ripple effects for product manufacturers and markets.

The Draft Guidelines were formulated with the General Services Administration and other agencies to help federal purchasers identify and buy environmentally preferable products; currently, agencies must meet a mandate that 95% of acquisitions be sustainable. EPA is also seeking input on how to assess existing, non-governmental environmental standards and ecolabels. Although many environmentally preferable products are identified with federal ecolabels such as Energy Star or Design for Environment, other products are not covered by such labels. When finalized, these guidelines will provide clarity regarding the term “environmentally preferable,” and help federal purchasers make consistent comparisons across different environmental standards and ecolabels.

The Draft Guidelines consist of four sets of guidelines, many of them referring to ISO 14024 and other existing standards for ecolabels, each addressing different aspects of the issue area:

  • Process for Developing the Standard
  • Environmental Effectiveness of the Standard
  • Conformity Assessment
  • Management of Ecolabeling Programs

Under EPA’s proposed approach, one or more NGO with expertise in the area would work with a multi-stakeholder panel to develop a process for applying the guidelines to private sector environmental standards and ecolabels. EPA envisions that the guidelines would be applied on product category basis to create a list of product standards and ecolabels that meet the guidelines for each product category. The resulting list would be made available to federal agencies for voluntary use and supplement existing federal standards or ecolabels.

The Draft Guidelines establish two tiers of guidelines: “Baseline” and “Leadership.” This approach was developed to allow flexibility in addressing the varying approaches to sustainability practices incorporated across different industries and product categories. According to EPA’s FAQ:

…draft “baseline” guidelines align with Federal goals and requirements, are relatively straightforward to evaluate, and are applicable across industry sectors. Draft “Leadership” guidelines represent EPA’s current assessment of best practices and are currently achievable by some standards and ecolabels.

The Draft Guidelines only address products, but EPA also expressed interest in public comments on environmental benchmarking for services such as hospitality, printing, and cleaning.

EPA is accepting comments on the draft guidelines through February 25, 2014.

U.S. retailer Target introduces sustainable product standard.

On October 7, 2013, Target announced a new Sustainable Product Standard that it will begin using this month to evaluate the sustainability and environmental impact of products sold in its stores.

Target said that it will ask “vendors representing 7,500 products in household cleaners, personal care and beauty and baby care” to provide product ingredients and information about various environmental attributes so that the company can assess products using GoodGuide’s UL Transparency Platform, a business-to-business screening tool that allows a company to evaluate ingredient information provided by suppliers. The Platform’s assessment tool will compare the product data to hazard trait and regulatory and other environmental criteria lists.

After being evaluated, each product will be assigned up to 100 points based on the sustainability of ingredients, ingredient transparency and overall environmental impact. Target’s announcement explains that the standard was developed “over the last two years in partnership with industry experts, vendors and NGOs.” The standard “will help establish a common language and definition for qualifying what makes a product more sustainable.”

According to Target spokesperson Jessica Stevens, the Sustainable Product Standard “does not have a direct guest-facing, in-store component,” so consumers will not see product assessment scores displayed in stores. Stevens explained that “products that pass a minimum threshold to be set by Target” will have access to special merchandising and marketing support.

Many environmental advocates like the Campaign for Safe Cosmetics and Breast Cancer Fund and Campaign for Safe Cosmetics were enthusiastic about the new standard. However, BizNGO chair and Clean Production Action co-director Mark Rossi expressed concern that the UL Transparency Platform is designed for information sharing between businesses and does not require any public disclosure; the platform’s proprietary nature means consumers and safety advocates have no access to the criteria used in its assessments. Although Target has not released any details on its scoring or standard benchmarks, it is expected to do so in the near future.

Target’s new Sustainable Product Standard follows its competitor Walmart’s announcement of its own “Policy on Sustainable Chemistry in Consumables,” which we discussed last month. Walmart’s policy is based on GreenWERCS, its own proprietary tool that assesses products’ chemical composition and screens for potential adverse human and environmental effects. Both retailers are taking steps to increase transparency and eliminate potentially hazardous chemical ingredients in their supply chains, although Target’s policy focuses on incentivizing safer products through its point-based standard, while Walmart’s approach is to eliminate certain chemical ingredients from products in their stores altogether.

Verdant Proudly Sponsors Prop.65 Clearinghouse's Green Chemistry Conference

Green Chemistry:

Verdant is pleased to announce its sponsorship of the Prop.65 Clearinghouse Green Chemistry Annual Conference.  This year’s conference will be held on Tuesday, April 9, 2013, at the The City Club of San Francisco, 155 Sansome Street.

  • Verdant attorney, Philip Moffat, will present on “REACH 2013.”
  • Verdant attorney, Catherine Lin, will present on “Supply Chain Management.”

More information about the conference is available here and an agenda is available here.   A copy of Mr. Moffat’s presentation is available here [PDF].

CIEL Report Claims Regulation Stimulates Chemical Innovation

Chemical Regulation/Innovation:

Earlier this month, the Center for International Environmental Law (CIEL) released its report, Driving Innovation: How stronger laws help bring safer chemicals to market.  In the report, CIEL offers research showing that stronger laws foster innovation by large and small companies alike.  Among other things,CIEL cites the number of patents for alternative chemicals filed every time there’s new chemical regulation. CIEL is located in Washington, D.C. and Geneva, Switzerland.  More information about CIEL is available here.

Forbes magazine recently published an article on this same topic, citing the CIEL report among other sources.  That article is available here.

What do others think of this conclusion?

EU Commission Releases Roadmap on Substances of Very High Concern

EU REACH Substances of Very High Concern:

Last week, the EU Commission released its Roadmap on Substances of Very High Concern (SVHC). The Roadmap outlines a process for identifying and assessing potential SVHCs within the following categories: substances that are carcinogenic, mutagenic or toxic for reproduction (CMRs); substances that are persistent, bioaccumulative or toxic for the environment (PBTs); substances that are very persistent and very bioaccumulative (vPvBs); and substances of equivalent concern, such as endocrine disruptors. The Roadmap estimates that the process will evaluate up to 440 substances, a far lower number than the 1,900 substances originally anticipated, with an initial goal of completing 80 assessments by the end of 2014.

The Roadmap follows the Commission’s commitment to compile a comprehensive REACH candidate list of SVHCs and is designed to help meet the Commission’s plan to include all currently known SVHCs on the candidate list by 2020.

The SVHC Roadmap proposes first screening substances with REACH registration dossiers by applying a minimum quantity threshold and generally exempting substances registered only for intermediate uses. The second step entails conducting a “Risk Management Options” (RMO) analysis. Under this approach, the best regulatory option to manage a particular risk is chosen after considering actions available within REACH (like imposing authorization, restriction or substance evaluation requirements) or under other legislative schemes, such as RoHS. For example, the Roadmap suggests that substances with demonstrated risk should be restricted under REACH.

The roadmap is downloadable as a PDF from the EU website.