18 November 2022
Kelley Drye & Warren LLP
To print this article, all you need is to be registered or login on Mondaq.com.
Last year, we posted about Earth Island Institute’s
lawsuit against Coca-Cola, alleging that the company falsely
represents itself as “a sustainable and environmentally
friendly company, despite being one of the largest contributors of
plastic pollution in the world.” While many lawsuits involving
green claims focus on claims about past or present results (which
can usually be proven or disproven), this lawsuit focused on
aspirational and forward-looking statements (which are inherently
harder to prove or disprove).
The DC Superior Court determined that many of the challenged
statements are aspirational and do not including anything that can
be measured to determine whether they are true or false. For
example, phrases such as “a more sustainable future for our
communities and our planet” and “help develop more
effective recycling systems” are extremely vague.
“[W]hile they point to a general theme of sustainability and
corporate improvement, there is not a measurable standard to apply
as to whether or not Defendant has met these general
goals.”
Other statements – including statements about the
company’s plan “to help collect and recycle a bottle or
can for every one we sell globally by 2030” – were more
specific. However the court determined that “a consumer would
not be able to determine if the goal has yet been met in 2022 as it
is set significantly in the future.” Moreover, “the
inclusion of the word ‘help’ muddles the promise, such that
the enforceability, even in 2030, appears to be somewhat
uncertain.” Bottom line:
As future, aspirational goals, these statements cannot
successfully create a valid claim under the [Consumer Protection
Procedures Act (or “CPPA”)] until they have been found to
be inaccurate or misleading.
Although this decision suggests that advertisers may have some
breathing room to make aspirational statements, it’s worth
noting that the case could have ended up differently had it been
brought in a different venue. For example, in cases such as this one, NAD has held that “an
advertiser must be able to demonstrate that its goals and
aspirations are not merely illusory and to provide evidence of the
steps it is taking to reach its stated goal.”
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
POPULAR ARTICLES ON: Media, Telecoms, IT, Entertainment from United States
Indian Advertising Regulation & Law
Khaitan & Co LLP
The Indian advertising market has been subject to consistent and strong growth for some time, and this has been assisted by the adoption of technology and the massive growth in smart devices …
Does The Use Of Chatbots Constitute Wiretapping?
Klein Moynihan Turco LLP
Recent California class action lawsuits are targeting websites that employ chatbots to offer their consumers real-time, online assistance. In the aftermath of the Ninth Circuit decision…
Maryland Digital Ad Tax Struck Down
Baker Botts
Maryland’s first-of-its-kind gross revenue tax on digital advertising receipts was struck down last week by Maryland state circuit court judge Alison Asti who issued a bench ruling…
Hotels, Hotel Owners And Employee Personal Information
Jeffer Mangels Butler & Mitchell LLP
Hotel operators and owners have long been focused on the privacy of the personal information they collect from guests – because of the global nature of the hospitality business…