Greenwashing has come to mean making false or deceptive representations about environmentally friendly aspects of products, services or practices.
The vast majority of greenwashing legal actions target product or service providers touting their wares in such a way that misleads consumers about the environmental benefits of those goods or services by, for example, making unsubstantiated claims about better energy efficiency or lower environmental impact.
However, in a twist that might be called reverse greenwashing, a new lawsuit focuses on alleged false or deceptive claims about the negative environmental impact of competitors’ products.
Specifically, plastic bag makers Hilex Poly Company, Superbag, and API Enterprises accuse ChicoBag, which markets its reusable bags as eco-friendly alternatives to single use plastic bags, of making false, misleading and unsubstantiated claims about the consumption, recycling, and environmental impact of plastic bags.
According to the second amended complaint (Hilex_Complaint), filed in federal court in Columbia, South Carolina, ChicoBag has made several false or deceptive claims in its advertising and promotion, and has falsely indicated that the claims are substantiated. The disputed claims include:
the statement that only one percent of plastic bags are recycled;
the statement that “somewhere between 500 billion and a trillion plastic bags are consumed worldwide each year”
the statements that “the world’s largest landfill can be found floating between Hawaii and San Francisco” and “this ‘landfill’ is estimated to be twice the size of Texas” and the “landfill” is comprised of “mostly plastic bags”;
the statements that “[e]ach year hundreds of thousands of sea birds and marine life die from ingestable [sic] plastics mistaken for food” and that such plastics are comprised mostly of plastic bags.
The plaintiffs also allege that some of ChicoBag’s assertions about its own reusable bags are false or misleading, such as the statement that its products are superior to plastic bags and that a reusable bag needs to be used only eleven times to have a lower environmental impact than using eleven disposable bags.
The complaint asserts one federal cause of action for false advertising under the Lanham Act and another for violations of the South Carolina Unfair Trade Practices Act.
It seems likely that some of the disputed statements will be deemed permissible advertising puffery.
However, green consumers deserve accurate and substantiated information not only in connection with the environmental benefits of products they may want to purchase, but also the reverse – with respect to the environmental detriment of products they may wish to avoid.
Eric Lane is a patent attorney at Luce, Forward, Hamilton & Scripps in San Diego and the author of Green Patent Blog. Mr. Lane can be reached at elane@luce.com.
