Climate Change Litigation - Greenwashing in Consumer Goods

Climate Change
QC Boston Tomo
By
Greenwashing

In 2016, green revenues accounted for approximately 4% or USD1.6 trillion of total turnover globally among listed companies[1]. This was up from USD1 trillion in 2009[2]. Many of these companies advertise their products as having a sustainable or environmentally friendly feature such as “green”, “recycled”, “sustainable” and “eco” to name but a few. But these environmental claims are sometimes misleading.

The anecdotal evidence is that misleading environmental claims or greenwashing is widespread. The precise scale and scope is difficult to comprehensively measure across industries and globally. But what has been measured causes alarm. For example, in 2021:

  • 39% of the products of a group of fashion brands[3] were advertised using sustainability-related claims. Of those claims, 59% were considered greenwashing[4];
  • 42% of “green online claims” assessed by the European Commission were exaggerated, false or deceptive and could qualify as unfair commercial practices under EU rules[5].

In Australia almost 80% of consumers surveyed considered sustainability is “somewhat important” when making purchasing decisions but only 20% are prepared to “figure out a product’s environmental impact for themselves”[6]. In addition, 95% of consumers surveyed are willing to pay more for more sustainable products[7]. These factors make consumers acutely vulnerable to greenwashing.

Unsurprisingly, both the Australian Competition and Consumer Commission (the ACCC) and the Australian Securities and Investments Commission (ASIC) have publicly stated their intention to monitor greenwashing in their areas of regulatory responsibility[8].

Companies that engage in greenwashing are also at risk both from a reputational and financial perspective. 41% of Australian consumers surveyed said they would stop buying (permanently) from a business they believed had done something that was socially or environmentally inappropriate, and 31% would tell their friends and family never to use the brand[9].

This is the second article in the series on climate change litigation. It will focus on greenwashing of consumer goods[10] at the product level.

The greenwashing of financial products and greenwashing at the organisational level will be considered in future articles in the series.

General definition of greenwashing?

There are a range of definitions of greenwashing depending on the context in which the definition is offered. A dictionary definition is “disinformation disseminated by an organization so as to present an environmentally responsible public image”[11].

Another definition is “the practice of construing an activity as more environmentally friendly than it really is”[12].

While these definitions are useful, they do not provide a unified definition and more importantly, do not inform companies and other interested parties as to when environmental claims will amount to prohibited or actionable greenwashing.

No legal definition of greenwashing?

It may come as a surprise there is not a universally accepted legal definition of “greenwashing”. It is not defined under statute in Australia. There is not a statutory cause of action called “greenwashing”.

It is not defined by the ACCC[13], the regulator with primary oversight of greenwashing of consumer products. Interestingly, the ACCC uses the term “green marketing” rather than “greenwashing” in its guidance[14]. ASIC does proffer a definition, but that is in the context of “financial products and investment strategy”[15]. That definition has no statutory force but gives an insight into the regulator’s understanding of greenwashing.

A proposed legal definition of greenwashing

Reputations can be lost attempting to define an elusive concept. So I propose a legal definition of greenwashing with some trepidation.

Environmental claims made in the marketing and sale of consumer goods will be regulated primarily under the Australian Consumer Law (the ACL)[16].

Section 18 of the ACL contains the general prohibition against misleading or deceptive conduct[17]. More specific prohibitions in relation to false and misleading representations are found in sections 29, 33, 34 and 151 of the ACL. In broad terms, the specific prohibitions concern misleading conduct and false representations in relation to the nature, characteristics, standard, quality, sponsorship and manufacturing process of a good. Breach of ss.33 and 34 gives rise to civil penalties. Section 151 creates a criminal offence which can attract a substantial fine. In addition, injunctions[18], damages[19] and remedial orders[20] are available for breach of the prohibition on misleading or deceptive conduct[21].

Therefore, prohibited or actionable greenwashing can be defined as environmental claims made in the marketing and sale of consumer goods that amount to misleading or deceptive conduct as that phrase is understood under the ACL.

The difficulty, however, with that definition is that the ACL does not define the phrase misleading or deceptive or define what might amount to misleading or deceptive conduct. There has been many decades of jurisprudence on these concepts and it is outside the scope of this article to offer a treatise on the topic. However, to indicate what is involved in that assessment and the meaning of the phrase, the main principles are synthesised into the following paragraph.

Environmental claims made in the marketing and sale of consumer goods will constitute misleading or deceptive conduct where the claims (even if true[22]) when examined objectively[23] and in context[24] establish there is a real or not remote chance or possibility[25] that the ordinary or reasonable members of the class of prospective purchasers of the product[26] would be led into error by for example, labouring under an erroneous assumption[27], despite the fact the corporation acted reasonably and honestly[28] and did not intend to mislead or deceive.[29]

While this summary suggests unwieldy complexity, in practice not all of these concepts are in issue in any one proceeding and there is a level of workable predictability in the application of these concepts.

Actionable greenwashing vs non-actionable greenwashing

All things being equal, environmental claims that do not amount to misleading or deceptive conduct are not actionable “greenwashing” under the ACL. But that might not mean the environmental claims are not greenwashing in a broader sense. This distinction is best understood with two examples.

Patagonia and Adidas advertised their use of ocean plastics in their products as an eco-innovative replacement for virgin plastic. On one view, it is true ocean plastics are an eco-innovative replacement. However, environmental groups have been critical of Patagonia and Adidas because the advertisement distracts from the global plastic pollution crisis and the reuse deals with the consequence rather than the source of the crisis[30]. But this distraction may not amount to misleading or deceptive conduct under the ACL.

Nestle (Philippines) has promoted its “plastic neutrality program” in which it sends all its single use plastic to cement kilns to be incinerated as cheap fuel. Environmental groups are critical of this program because Nestle has not cut its production of single use packaging and the incineration of single use plastic creates a health hazard to the local community with the release of cancer causing and air polluting chemicals[31]. The promotion of the program may not amount to misleading or deceptive conduct under the ACL.

While the litigation and regulatory risks are absent, greenwashing in the broader “non-actionable” sense can still pose reputational and financial risks to companies.

How to avoid greenwashing?

The ACCC has given some useful guidance on how to avoid “green marketing”[32] (the Green Principles). The Green Principles are also useful in assessing whether existing marketing and sales campaigns constitute actionable greenwashing.

  • ACCC’s Green Principles

Yes/No

Accurate

Able to be substantiated

Specific, not unqualified or general statements

Plain language

Genuine benefit or advantage

Do not overstate environmental benefit

Environmental images are representations

Which part of the product or production process does the environmental claim relate

Do the environmental claim cover the entire product life cycle (i.e. manufacture, recycling, destruction and disposal)

Use endorsements or certifications with care

Do not overstate the level of scientific acceptance

A word of warning about the ACCC’s Green Principles. Firstly, it is not exhaustive and nor is it intended to be. The absence of a specific reference to comparative claims and the limited definition of the product lifecycle[33] are two examples of its limitations. Second, it is not legal advice such that compliance will guarantee that the marketing in question is not misleading or deceptive. However, compliance with the ACCC’s Green Principles will ensure that the company is “less likely to fall foul of the law”.[34] Third, it is slightly outdated having been published in 2011.

Some emerging themes

Firstly, other than in the USA, greenwashing claims in relation to consumer goods are being brought before Authorities that regulate advertising through Codes that contain prohibitions cognizant with the misleading and deceptive conduct prohibition under the ACL[35]. This might change to more claims before Courts once a viable damages claim is developed or where claims by regulators are pursued.

Second, damages remain illusive other than in the USA. The US cases[36] are class actions, in which damages are assessed under the “premium price theory”. Broadly, under that theory consumers’ losses are equated to the premium price paid for the consumer product. Interestingly, that does not necessarily have to be established via a comparative product[37].

Third, while somewhat of an academic distinction, “climate washing” cases are on the rise. These cases are a subset of greenwashing cases with the claim the subject of the “climate washing” allegation focused on climate or the planet. Alpro, a producer of plant based milk, advertised its products in the UK as being “GOOD FOR THE PLANET”. This was considered misleading because it provided no context or explanation as to why the products were good for the planet[38]. This marketing would also have breached several ACCC’s Green Principles (viz. overstate the environmental benefit and able to be substantiated (at least)).

Fourth, in assessing misleading advertising, regulators identify the express and implied representations ordinary and reasonable members of the class of purchasers would understand is being conveyed by the advertisement. Identifying the implied representation is not always obvious and often involves examining the representation in the broader context. But as with express representations, implied representations can amount to actionable greenwashing.

Innocent drinks launched an animated TV advertisement of their drinks. The advertisement commenced with a depiction of a damaged planet and brown food. The advertisement then switched to imagery of the planet being ‘fixed up’ whilst Innocent drinks are being consumed alongside images of other Innocent products, depicting people and animals relaxing in a green environment. The switch implied a direct association between choosing Innocent drinks and helping the environment. Lyrics are sung by the animated animals “Let’s get fixing up the planet. Fix it up real good …” and “Reduce. Re-use. Recycle. Because there is no planet B. If we’re looking after nature she’ll be looking after me”[39].

The problem with the advertisement is that Innocent drink bottles are made from non-recyclable single use plastic. Further the extraction and processing of the raw materials and subsequent processing of those materials to produce the bottle have a negative impact on the environment. In addition, the major shareholder of Innocent is Coca Cola, who is alleged to be one of the worst plastic polluters in the world[40]. Under the ACCC’s Green Principles, these implied messages would be considered representations that might be actionable greenwashing.

Fifth, greenwashing claims made against rival companies have appeared. Before the UK’s Competition Appeal Tribunal , Churchill Gowns, a supplier of gowns made of recycled plastic bottles sued Ede & Ravenscroft (largest supplier of academic dress) for anti-competitive behaviour[41]. Ede & Ravenscroft allege by way of counterclaim that Churchill Gowns’ “recycled materials” claim is misleading because tests conducted by Ede & Ravenscroft on the garments of Churchill Gowns did not find plastic bottle fibre in the fabric[42]. Under the ACCC’s Green Principles, if the environmental claim could not be substantiated that might give rise to actionable greenwashing.

In Australia, misleading or deceptive conduct claims have been made against competitors, albeit not yet for greenwashing[43].

Sixth, greenwashing not only arises in the marketing and sale of “brown” consumer products, but it can also arise in the marketing and sale of “green” consumer products. This will be seen in some of the examples in the next section.

Some lessons

The lessons are drawn from several jurisdictions. Many of these jurisdictions have legislation or Codes that use concepts similar to the misleading and deceptive language used in the ACL. There will be nuanced differences in the jurisprudence. So while environmental claims were misleading in those jurisdictions that might not necessarily hold true here. However, these cases provide useful lessons on the issues that might arise in our jurisdiction in relation to actionable greenwashing.

Use of language

Terms such as “green”, “sustainable” and “recyclable” continue to be misused. The absence of any universally accepted or legally enforceable definition of these terms is a contributing factor.

The ACCC’s guidance on the use of the word “green” is that it is “very vague and conveys little information to the consumer other than the message that the product is less damaging to the environment than others”[44].

The Italian oil giant, Eni, advertised that its palm oil based diesel “Eni Diesel+” was “green”. This was misleading because the harvesting of the raw materials to produce palm oil diesel causes deforestation and it is alleged this biodiesel is three times worse for the climate than regular diesel when Scope 3 emissions are accounted for[45].

The consideration of Scope 3 emissions in any environmental claim made in the sale and marketing of a consumer good is with no clear guidance. In the financial disclosure context, the Taskforce on Climate Change Disclosures recommends disclosure of Scope 3 emissions where it is “a significant portion of [the] total GHG emissions”. This might be a useful guide to adopt in the consumer products context.

The ACCC’s guidance on the use of the word “recyclable” is to verify that the product can actually be recycled before making such claims[46].

Reynolds Consumer Products Inc. manufacture, market and sell Hefty branded “Recycling” bags. The word “Recycling” appears within a green background[47]. It is alleged that the representation is false because Hefty bags are made from low-density polyethylene plastic (LDPE plastic), which can contaminate the recyclable waste stream[48]. LDPE plastic can be recycled but not all waste facilities have that capability. This was tacitly acknowledged by including the statement “Developed for use in Municipal Recycling Programs Where Applicable” on the label. The case is ongoing.

Bluetriton markets and sells bottled water labelled as “100% Recyclable”[49]. It is alleged that the label is misleading because the plastic bottles are made from single use plastic which can be recycled but recycling facilities in the USA are only recycling about 20% of the total volume; and the bottle caps and label are not recyclable[50].

So far as I am aware, the ACCC has not provided guidance on the use of the word “sustainable”. Aldi sold Atlantic Salmon that was labelled “Sustainable” and “BAP Certified”. The BAP certification (i.e. Best Aquaculture Practices) was issued by an independent third party. Aldi’s defence is that the word “Sustainable” is qualified by the certification such that the fact Aldi sources its salmon from aquaculture pen farms in Chile means that the word “Sustainable” is accurate and not misleading. On a recent summary judgement application, the Court commented that consumers might not know the meaning of the certification and the fact that it qualifies the word “Sustainable”.

An interesting case arose in relation to the Windex Vinegar Ocean Plastic bottle. Windex promoted the bottle as made from 100 percent recycled ocean plastic. The term “ocean plastic” suggested that the plastic was retrieved from the ocean. However, it was actually sourced from plastic banks in Haiti, the Philippines and Indonesia. Plastic at the plastic banks consist of plastic collected on land that would otherwise have leaked into the ocean. This plastic is usually known as ocean-bound plastic[51].

In our jurisdiction, the Australian Centre for Corporate Responsibility has brought a misleading and deceptive conduct claim against Santos for describing its natural gas as “clean energy”. Interestingly, on 6 July 2022, the EU voted in favour of calling natural gas “green” or “sustainable” sources of energy. This is considered controversial because natural gas is a fossil fuel primarily made from methane, which is a significant contributor to climate change[52].

Use of certificates

Certificates from independent third party organisations are often used to support the environmental claims made in the marketing and sale of consumer products. There is a false assumption these certificates, even those that are considered the gold standard, protect environmental claims from proceedings for actionable greenwashing. This is not always the case.

The ACCC’s guidance is to use endorsements or certifications with care[53].

Ikea is one of the biggest wood consumers in the world. It advertises its furniture has been certified under the Forest Stewardship Council (FSC) label, which is the gold standard of green labels for wood. Ikea sources some of its wood from a Ukrainian company, VGSM, which is one of the largest timber processing companies in Ukraine. The UK non-profit Earthsight released a report which alleged that the FSC audit conducted before issuing the certificate to Ikea was flawed because it failed to identify that VGSM had undertaken illegal logging activities in supplying wood to Ikea[54].

Ryanair’s use of the Eurocontrol chart (an independent third party) to support Ryanair’s claim it was “Europe’s… Lowest Emissions Airline” was misleading because the chart did not identify the other European airlines against which Ryanair was measured and it did not provide sufficient information from which a comparison with other European airlines could be understood[55].

Product comparisons

Environmental claims that seek to make a comparison with another product or industry have also created instances of greenwashing.

Ryanair’s advertisement compared its carbon emissions to that of “any major airline” and described itself as “Europe’s… Lowest Emissions Airline. The advertisement was found to be misleading because the use of the phrase “major airline” suggested a market wide comparison. Whereas, Ryanair had compared itself to only 4 other airlines and there was no commonly recognised definition of “major airline” [56].

Oatly (the Swedish food company that produces alternatives to dairy products from oats) used several misleading comparisons in its advertisements. The representation that “Oatly generates 73% less CO2e vs. milk” was misleading because the evidence relied upon in support was a comparison of only one Oatly product (rather than the full suite advertised) and cow’s milk[57].

The representation that “The dairy and meat industries emit more CO2e than all the world’s planes, trains, cars, boats etc., combined” was misleading even though it was supported by expert reports, those reports compared different parts of the lifecycles of the two industries [58].

The representation that "Today, more than 25% of the world's greenhouse gases are generated by the food industry, and meat and dairy account for more than half of that" was misleading because the report relied on in support of that included eggs, fish and shellfish in the definition of “meat and dairy”, whereas some consumers would understand meat and dairy in a narrower sense[59].

Carbon offsets

Carbon offsetting[60] is a tool available to achieve carbon neutrality. Offsetting is popular in the aviation industry, where passengers can pay a premium on the ticket price to offset the carbon emissions from the flight. The problem with offsetting is that it does nothing to reduce the carbon generated at the source and this can have greenwashing implications. KLM, the Dutch airline, launched a “Fly Responsibly” campaign in which it promoted sustainable travel through the “CO2 Zero” carbon offset program under which passengers can offset the carbon emissions from their flight by paying towards a reforestation project or by contributing to the costs of KLM’s purchase of biofuels. The Dutch NGO, Fossielvrij Netherlands, has commenced proceedings in the Dutch Courts alleging that the advertisement breaches the European Unfair Consumer Practices Directive that prohibits misleading and unfair commercial practices directed at consumers. The NGO alleges this breach arises because the planting of trees without reducing carbon emissions at the source cannot prevent dangerous climate change. Further, the contribution to the costs of purchasing biofuels is nothing more than a donation to KLM’s business[61].

Conclusion

Actionable greenwashing is no longer the sole province of environmental claims made in the marketing and sale of “brown” goods as “green” goods. Actionable greenwashing has also arisen in the marketing and sale of green goods. A major contributing factor to this continuing development is the absence of an agreed taxonomy. Fundamental terms such as “greenwashing”, “green”, “sustainable” and the like, are without agreed definitions. But while we await the development of agreed definitions, guidance is readily available from the misleading and deceptive conduct jurisprudence.


[1] Green revenues, profitability and market valuation: Evidence from a global firm level dataset Tobias Kruse, Myra Mohnen, Peter Pope and Misato Sato January 2020 p.10

[2] ibid.

[3] Asos, Boohoo, Forever 21, George at Asda, Gucci, H&M, Louis Vuitton, Marks & Spencer (M&S), Uniqlo, Walmart, Zalando and Zara.

[4] The Changing Markets Foundation, the ‘Synthetics Anonymous’ report dated 30 June 2021.

[5] “Screening of websites for ‘greenwashing': half of green claims lack evidence”

European Commission Press Release, dated 28 January 2021

[6] “Greater Expectations: Why consumers won’t stand for corporate greenwashing” by Gerri Ward and Meg Fricke dated 7 October 2021

[7] “Unpacking Asia-Pacific Consumers’ New Love Affair with Sustainability” by Zara Lightowler, Gerry Mattios, James Yang, and David Zehner (3 June 2022)

[8] “Financial Review” 15 June 2022; and Media Release 22-141MR on 14 June 2022.

[9] See fn. 6

[10] For convenience, the definition of consumer goods in the Australian Consumer Law will be adopted. That is, goods that are intended to be used, or are of a kind likely to be used, for personal, domestic or household use or consumption. These will include the spectrum of goods from frequently purchased and convenient, mass produced goods such as oat and almond milk, to one off purchases such as a solar power storage batteries or an electric car.

[11] Oxford English Dictionary (online)

[12] The chapter on “Greenwashing” by Ingmar Lippert at p.421 in the book “Green Culture: An A-to-Z Guide”. SAGE, 2011.

[13] The ACCC is not the only regulator that has not defined greenwashing. The European Commission recently announced that it was working on a legal definition of “greenwashing” to underpin enforcement action (“EU watchdog to define 'greenwashing' as sustainable funds rocket”, Reuters 11 Feb. 2022)

[14] “Green marketing and the Australian Consumer Law” by the ACCC, 2011

[15] In ASIC’s media release: 22-141MR How to avoid ‘greenwashing’ for superannuation and managed funds, dated 14 June 2022, the term ‘greenwashing’ is defined as the practice of misrepresenting the extent to which a financial product or investment strategy is environmentally friendly, sustainable or ethical.

[16] It should also be noted that Ad Standards regulates advertising under, relevantly, AANA Environmental Claims Code. Ad Standards can direct an advertiser to withdraw or modify an advertisement that it considers to breach any of the codes. Decisions made by Ad Standards are not legally binding but tend to be followed in practice

[17] Section 18 of the ACL provides “A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive”. In this article, the shorthand, misleading or deceptive conduct is used.

[18] s.232 of the ACL

[19] s.236 of the ACL

[20] s.239 of the ACL

[21] The ACCC brought claims against Kimberly-Clark (re flushable wipes) ([2019] FCA 992) and Woolworths (re biodegradable and compostible products) ([2020] FCAFC 162) under s.4 of the ACL. That is, representations as to future matters. Whether the ACCC will persist with these claims in light of the negative rulings in these cases is unclear.

[22] Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 at 227

[23] Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 87

[24] Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 199

[25] Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 87

[26] Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45 at 85-86

[27] ibid. at [104]

[28] Campbell v Backoffice Investments Pty Ltd (2009) 238 CL 304 at [25]

[29] Google Inc. v ACCC (2013) 249 CLR 435 at [9]

[30] “Synthetics Anonymous. Fashion brands’ addiction to fossil fuels” report by the Changing Markets Foundation (March 2022)

[31] Greenpeace calls out Nestle for false claims on plastic neutrality - Greenpeace Philippines (Press Release dated 5 September 2020)

[32] “Green marketing and the Australian Consumer Law” by the Australian and Competition & Consumer Commission (2011) at p.3. Another useful piece of guidance is Terrachoice’s “Sins of Greenwashing” studies.

[33] Product life cycle is sometime described as a “cradle to grave” cycle. Therefore, this includes extraction of raw materials to the management of the end of life management (reuse, recycle, dispose).

[34] This is the view expressed by the UK’s Competition and Markets Authority in their publication “CMA guidance on environmental claims on goods and services” (CMA 146) dated 20 September 2021 at paras. 2.12 to 2.16 on pages 5 and 6

[35] For example, The Advertising Standards Authority is the UK’s independent advertising regulator. It responds to concerns and complaints from consumers and businesses and takes action to ban ads which are misleading, harmful, offensive or irresponsible. UK Code of Broadcast Advertising (BCAP Code) applies to all radio and tv advertisements. The UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code) applies to non-broadcast advertisements, sale promotions and direct marketing communications. The Codes incorporate prohibitions against “misleading” claims, which is a familiar concept to Australian jurisprudence. For example, (a) “Advertisements must not materially mislead or be likely to do so” (BCAP 3.1); (b) “The basis of environmental claims must be clear. Unqualified claim could mislead if they omit significant information” (BCAP 9.2); and (c) “Advertisements must not mislead consumers about the environmental benefit that a product or service offers” (BCAP 9.8). In Australia, Ad Standards regulates advertising under, relevantly, AANA Environmental Claims Code.

[36] Rawson v Aldi in the United States District Court for the Northern District of Illinois Eastern Division (No.21-cv-2811) dated 17 May 2022; Hanscom v Reynolds Consumer Products Inc. (case 4:21-cv-03434) filed on 5 July 2021 in the United States District Court Northern District of California; and Haggerty v Bluetriton Brands, Inc. (case 3:21-cv-13904) filed on 20 July 2021 in the United States District Court for the District of New Jersey.

[37] At p.8 to the Memorandum Opinion and Order of Judge Alonso in Rawson v Aldi in the United States District Court for the Northern District of Illinois Eastern Division (No.21cv-2811) dated 17 May 2022

[38] ASA Ruling on Alpro (UK) Ltd t/a Alpro 20 October 2021

[39] ASA Ruling on Innocent Ltd trading as Innocent dated 23 February 2022

[40] ASA Ruling on Innocent Ltd trading as Innocent dated 23 February 2022

[41] s.47A of the Competition Act 1998

[42] “Dragons’ Den-backed robe-maker in legal spat with London rival over recycled gowns” in This is Money.co.uk dated 4 February 2022; A further example is the case Alcantara S.p.A successfully brought in the Italian Courts against its competitor, Miko, for misleading advertising, which in effect amounted to greenwashing.

[43] Telstra Corporation Limited v Singtel Optus Pty Ltd [2020] FCA 1372 (Jagot J). Telstra alleged that Optus’ advertisements which stated “covering more of [Australia/State] than ever before” was misleading and deceptive. The case did not involve green claims

[44] “Green marketing and the Australian Consumer Law” by the ACCC, 2011 at p.12

[45]Eni tells shareholders it will ditch palm oil diesel by 2023” - Transport & Environment (transportenvironment.org) (14 May 2020).

[46] “Green marketing and the Australian Consumer Law” by the Australian and Competition & Consumer Commission (2011) at p.3

[47] Para. 17 in the Complaint in Hanscom v Reynolds Consumer Products Inc. (case 4:21-cv-03434) filed on 5 July 2021 in the United States District Court Northern District of California.

[48] ibid at para. 3.

[49] Para. 1 in the Complaint in Haggerty v Bluetriton Brands, Inc. (case 3:21-cv-13904) filed on 20 July 2021 in the United States District Court for the District of New Jersey.

[50] ibid at para. 6.

[51] 8 brands called out for greenwashing in 2020 | News | Eco-Business | Asia Pacific

[52] “European Parliament says natural gas can be considered ‘green’ for investments” by Hande Atay Alam et al. on CNN.com and dated 6 July 2022.

[53] “Green marketing and the Australian Consumer Law” by the Australian and Competition & Consumer Commission (2011) at p.3

[54] “NGO Report: Ikea is Using Wood Illegally Logged in Ukraine” by Organized Crime and Corruption Reporting Project dated 2 July 2020.

[55] UK ASA Ruling on Ryanair Ltd dated 5 February 2020. The omitted information was ratio of each airline’s emissions relative to its share of air traffic.

[56] UK ASA Ruling on Ryanair Ltd dated 5 February 2020

[57] ASA Ruling on Oatly UK Ltd t/a Oatly dated 26 January 2022.

[58] ibid.

[59] ibid.

[60] The concept of carbon offsetting is an activity adopted by an organisation that negates or offsets the same amount of carbon emissions that an organisation released into the atmosphere. The activity can be supporting a renewable energy source such as wind or solar, funding the planting of trees or buying carbon credits: World Economic Forum article entitled “What is carbon offsetting” dated 14 June 2019

[61] ClientEarth’s document entitled “KLM greenwashing case FAQ”. The planting of trees as an offset arose in ACCC v Holden [2008] FCA 142.

QC Boston Tomo
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Tomo Boston QC practises in commercial law, corporations and insolvency, trade practices, environment, product liability, professional negligence and arbitrations

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