"‘100%' Sustainable Claims Pose Mounting Legal Risk for Companies", 20 Feb 2024

...A new crop of lawsuits is targeting bold marketing claims like “100% sustainable” as companies from Hershey to United Airlines make increasingly ambitious environmental and social marketing assertions on their products or services...

There are few legislative or regulatory guardrails for such marketing, but the latest lawsuits follow a rise in consumer-led litigation targeting businesses for alleged greenwashing. As companies are keen to spotlight their environmental and social efforts to stay competitive, it’s the courts that will ultimately provide them with more clarity about what could be deemed misleading...

Hershey was sued in mid-January over its assertion that it has “achieved 100 percent certified and sustainable cocoa” in part by sourcing through Rainforest Alliance certified cocoa farms... The suit said Hershey only has 68% sourcing visibility “by cocoa volume,” and therefore it can’t make any promises about tracking the rest...

Mondelez... was sued over similar claims later in January for assertions about its “100% sustainably sourced cocoa.” ...the lawsuit also said that deforestation and child labor in the cocoa industry should negate any claims of entirely sustainable sourcing.

Starbucks was sued in early January for a similar claim, but the coffee giant’s assertion had a caveat: it said it has a “commitment to 100% ethical coffee sourcing” rather than claiming that its current efforts have already reached that goal..

A Starbucks spokesperson said in an email that the company takes “allegations like these extremely seriously” and is actively engaged with farms to ensure they adhere to its standards. “Additionally, we plan to aggressively defend against the asserted claims that Starbucks has misrepresented its ethical sourcing commitments to customers,” the spokesperson said.

...United Airlines was sued in November for allegedly misleading consumers over its commitments to be “100% Green.” At the time, United said the lawsuit “is without merit,” adding that it intends to defend itself “vigorously.”

There have been some corporate successes so far: Etsy fended off a lawsuit in October accusing the company of falsely representing that it offsets 100% of carbon emissions generated by its shipping. The California federal court said at the time that the lawsuit didn’t plausibly link the carbon offset assertions to customers paying a price premium.

Companies are more inclined to make bold statements like “100% sustainable” because they know customers are eager to buy products that they think are better for the planet...

“I think we are still in a transitional period right now,” said Greenbaum, the advertising lawyer. He noted that there are different interpretations issued by various judges on what’s misleading and what’s not. “Not only are the rules not clear, but even when the government or judges interpret those rules, they’re not necessarily interpreting them in the same way,” he said.