The willingness of most U.S. consumers to pay a premium for environmentally friendly products has led to a significant surge in demand for “green” products. Companies tap into this demand using green marketing. But consumers are becoming increasingly sensitive to green claims made with questionable degrees of certainty, specificity, and clarity—also known as “greenwashing.”
Over the last several years there has been an increase in litigation around greenwashing in the form of false-advertising allegations. Claims like “sustainable,” “natural,” “compostable,” “organic,” and even “made with recycled materials” can spur questions from consumers and regulators about the basis for those claims. Complicating the situation is the fact that manufacturers and sellers of goods with sprawling global supply chains may lack a complete picture of products’ environmental impacts. Despite the increase in litigation, false-advertising allegations are governed by quite general consumer-protection standards, sometimes making it hard to predict how different judges in different cases will rule. The potential variability in courts’ application of these standards, compounded by the uncertainty inherent in complex supply chains, can create fertile ground for litigation.
One of the fastest-growing segments of greenwashing litigation has involved per- or polyfluoroalkyl substances, or PFAS. These ubiquitous, artificial chemicals are found in many consumer products—including many products featuring green-marketing claims regarding sustainability, lack of artificial or harmful chemical content, and natural origins. In this article, we examine the intersection of PFAS and false-advertising claims.
PFAS are a group of thousands of synthetic “forever chemicals” that are used, among other things, to make coatings that can resist extreme temperatures and repel grease, water, and stains. PFAS are well known for their uses in industrial products in the aerospace, oil and gas, mining, and medical device industries. But PFAS are also used in a wide variety of consumer products. In fact, it can be difficult to identify a consumer product category that does not use PFAS. Rug, carpet, and furniture manufacturers use PFAS to create performance or easy-clean surfaces. Cosmetics companies use PFAS in emulsifiers, creams, hair conditioners, and weather-resistant makeup. Cookware and bakeware companies use PFAS to create nonstick surfaces. Food-packaging manufacturers use PFAS to prevent water and grease from soaking through containers like pizza boxes and takeaway bowls. Outdoor apparel and equipment companies use PFAS in the waterproof coatings of rain jackets, tent flies, and hiking boots.
The ubiquity of PFAS has required researchers to develop tests to determine whether PFAS are present in a given sample. Researchers have developed two categories of testing: screening tests and individual tests. Screening tests, including tests for total fluorine or total organic fluorine in a sample, can be used as an indicator for potential levels of PFAS in a given sample because they focus on the presence of fluorine, a signature of PFAS chemicals. In comparison, tests for individual PFAS can be utilized to study a subset of PFAS chemicals in a sample. See EPA, PFAS Analytical Methods Development and Sampling Research. These tests provide different information with varying degrees of fidelity.
Testing for fluorine and PFAS has led to surprising results. PFAS have been found in unexpected places around the world, from yoga pants to base camp on Mt. Everest. Various studies have revealed, for example, that the vast majority of Americans carry PFAS in their blood; that polar bears hold an incredibly high PFAS load due to their position at the apex of the food chain; that PFAS in some rainwater samples have exceeded drinking-water standards; and that goods ranging from children’s toys to feminine hygiene products contain PFAS.
Given the growing public knowledge of PFAS, and the products in which they are found, certain brands may have an opportunity to outpace their competitors by replacing PFAS in their products and conveying such to sustainability-minded consumers. But the prevalence of PFAS will create marketing challenges. Because PFAS have a baseline presence in the environment and are found in everyday products, what are the implications for popular claims like “natural,” “organic,” or “PFAS-free”? As regulators and private litigants begin to act in this realm, we will likely see shifts in green marketing strategies across countless store shelves.
The most important authority on greenwashing is the U.S. Federal Trade Commission (FTC). The FTC is an independent federal agency charged with enforcing civil antitrust law and promoting consumer protection. 15 U.S.C. § 46(a)(1). The FTC’s founding legislation, the FTC Act, prohibits “unfair or deceptive acts or practices in or affecting commerce.” Id. § 45(a)(1). Deceptive acts or practices include material misrepresentations that are likely to mislead customers acting reasonably under the circumstances. See, e.g., FTC v. World Travel Vacation Brokers, Inc., 861 F.2d 1020, 1029 (7th Cir. 1988). Reliance is not required to show a violation of the FTC Act. See Trans World Accounts, Inc. v. FTC, 594 F.2d 212, 214 (9th Cir. 1979).
In 1992, the FTC issued its Guides for the Use of Environmental Marketing Claims, also known as the Green Guides, to address growing interest by consumer-product manufacturers in making environmental claims. See generally 16 C.F.R. pt. 260. The Green Guides provide the FTC’s views on what standards manufacturers should meet before making certain green claims about their products. The FTC revised the Green Guides in 1996, 1998, and 2012 to account for new developments in consumer interest and brands’ marketing practices.
The Green Guides establish several general principles governing environmental marketing. First, they provide that all qualifications and disclosures should be “clear, prominent, and understandable.” 16 C.F.R. § 260.3. Second, unless it is clear from context, environmental marketing must specify whether a claim refers to the product, packaging, a service, or just a portion of the product, package, or service. Third, the Green Guides discourage general, insufficiently qualified claims of environmental benefits. Fourth, all green marketing claims must be supported by a “reasonable basis,” which often will require “competent and reliable scientific evidence.” Id.
The Green Guides also have significant persuasive value or even binding effect outside of the FTC Act context. States and private plaintiffs draw from the Green Guides in their own enforcement of consumer-protection laws. Some states like California, Maine, Michigan, and Rhode Island explicitly incorporate the guides by reference, in whole or in part, in their laws controlling unfair and deceptive business practices. See, e.g., Cal. Bus. & Prof. Code § 17580.5(a); 38 Me. Rev. Stat. Ann. § 2142; Mich. Comp. Laws Ann. § 445.903(dd)(i); 6 R.I. Gen. Laws Ann. § 6-13.3-1(2). California goes the furthest, making compliance with the Green Guides’ standards or the examples therein a complete defense to liability. See Cal. Bus. & Prof. Code § 17580.5(b)(1). California has promulgated dedicated greenwashing laws imposing specific requirements on products advertised as recyclable, compostable, home compostable, biodegradable, and decomposable. See Cal. Pub. Res. Code §§ 42357, 42357.5, 42357.6. A full understanding of the Green Guides is critical for consumer-product brands that want to make green claims about their products.
The FTC Act does not include a private right of action—it is instead enforced by the FTC. In recent years, the FTC has demonstrated its growing appetite to enforce against greenwashing. On April 8, 2022, the agency initiated enforcement actions against Kohl’s and Walmart over towels, sheets, pillows, and other textile goods that the companies had advertised as being composed of “bamboo,” and thus, among other things, “highly renewable,” “eco-friendly,” “gentle on the planet,” “sustainable,” and “environmentally friendly.” See, e.g., Complaint, United States v. Walmart, No. 22-965 (D.D.C. Apr. 8, 2022). But because the products were composed of rayon, a regenerated fiber derived from chemically treated cellulose that releases air pollutants during the manufacturing process, the FTC alleged that these products were deceptively advertised to exaggerate the products’ environmental benefits. See id. Kohl’s and Walmart settled the cases for $2.5 million and $3 million, respectively. Lesley Fair, $5.5 Million Total FTC Settlements with Kohl’s and Walmart Challenge “Bamboo” and Eco Claims, Shed Light on Penalty Offense Enforcement, FTC (Apr. 8, 2022).
At this point, the FTC has not yet brought enforcement actions related to PFAS claims. However, there are two pieces of FTC activity that are worth noting: current guidance on “free of” claims and the potential for Green Guides updates.
In addressing “free of” claims, the Green Guides note that even if true, claims that an item is free of a substance may still be deceptive if the product contains substances that pose the same or similar environmental risk as the substance not present, or if the contained substance is not normally associated with the product category. See 16 C.F.R. § 260.9. However, the Green Guides suggest that a “free of” claim may be appropriate even for products that contain or use a trace amount of a given substance if (1) the level of the specified substance is no more than that which would be found as an acknowledged trace contaminant or background level, (2) the substance’s presence does not cause material harm that consumers typically associate with that substance, and (3) the substance has not been added intentionally to the product. Id. § 260.9(c).
The “free of” references in the Green Guides have and will continue to pose challenges for marketing representations implicating PFAS. The ubiquity of PFAS in many supply chains may lead to the discovery of PFAS in products whether intentionally added or not because PFAS may be used in products, the manufacturing process, or packaging. As a result, consumer-product manufacturers should take care that any claims about PFAS content are clear, specific, and backed with substantiation.
Since 2020, dozens of lawsuits have been filed against marketers of products allegedly containing PFAS. One of the most well-covered deceptive marketing claim cases involved the brand Thinx, a period underwear company. The case focused on a characterization of Thinx underwear as “free of harmful chemicals.” Class Action Complaint, Dickens v. Thinx, No. 1:22-cv-04286 (S.D.N.Y. May 25, 2022). Thinx had made sustainability a cornerstone of its brand, marketing its products as “free of harmful chemicals,” “safe and sustainable,” “organic,” and free of “toxic metals or engineered nanoparticles.” Id. In 2022, a class of Thinx customers filed suit alleging the marketing was fraudulent because the underwear contained PFAS and silver nanoparticles. In early 2023, Thinx settled the lawsuit for $5 million. See Kelsey Ables, Period Underwear and Toxins: What to Know About the Thinx Lawsuit, Wash. Post, Jan. 20, 2023. Scores of similar lawsuits have been filed, targeting products that allegedly contain PFAS but are marketed in an inconsistent way.
The FTC has also signaled that it is considering amendments to the Green Guides, which may aid consumers in making informed purchasing decisions while also posing additional challenges for companies that market products containing PFAS. In a comment period that closed on April 24, 2023, the FTC solicited input on expected updates to the Guides, seeking feedback on standards governing marketing regarding carbon offsetting, climate change, and terms like “recyclable,” “recycled content,” “compostable,” “organic,” and “sustainable.” FTC, FTC Greenlights Green Guides Comment Extension (Jan. 31, 2023). Given the uptick in green marketing, a growing recognition of and concern over the ubiquity of PFAS, as well as the FTC’s more aggressive posture in general, the agency’s updates could spark substantial changes in the marketing of products containing PFAS.
As discussed, the FTC Act does not provide any enforcement role for states. However, nearly every state has adopted consumer-protection laws that incorporate the Act’s definitions of unfair and deceptive practices. See generally Henry N. Butler & Joshua D. Wright, Are State Consumer Protection Acts Really Little-FTC Acts?, 63 Fla. L. Rev. 163 (2011). In general, these laws provide for enforcement by state agencies—and sometimes a private right of action.
Although the FTC states that the Green Guides are nonbinding, courts applying state law tend to use the Guides at least as highly persuasive authority on the subject of green marketing. Some states incorporate the Green Guides by reference, in whole or in part, in their consumer-protection laws. For example, Alabama and Indiana prohibit the distribution of any product labeled as, among other things, “biodegradable” or “compostable” unless the product complies with the Green Guides. Ind. Code Ann. § 24-5-17-2; Ala. Code 1975, § 22-27A-1. Michigan has adopted the Green Guides’ standards for claims regarding a product being recyclable or degradable, or containing recycled content. Mich. Comp. Laws Ann. § 445.903(dd)(i). California, Maine, and Rhode Island also explicitly incorporate the guides by reference in varying degrees. See Cal. Bus. & Prof. Code § 17580.5(a); 38 Me. Rev. Stat. Ann. § 2142; 6 R.I. Gen. Laws Ann. § 6-13.3-1(2). California goes perhaps the furthest, making compliance with the Green Guides’ standards or the examples therein a complete defense to liability. Cal. Bus. & Prof. Code § 17580.5(b)(1).
Many states have also developed their own guides or rules for whether certain green marketing claims pass muster. For example, California has dedicated greenwashing laws imposing specific requirements on products advertised as recyclable, compostable, home compostable, biodegradable, and decomposable. Cal. Pub. Res. Code §§ 42357, 42357.5, 42357.6. Minnesota recently passed rigorous new rules regulating when packaging, food packaging, and bags can be represented as biodegradable, decomposable, or compostable. Minn. Stat. § 325F.075.
Running the gauntlet of these state laws is not easy for products containing PFAS. Take Michigan, where a product or packaging may not be represented as degradable, biodegradable, or photodegradable unless it will “completely decompose into elements found in nature within a reasonably short period of time after consumers use the product and dispose of the product or the package in a landfill or composting facility, as appropriate.” Mich. Comp. Laws Ann. § 445.903(ee). Because many PFAS last essentially forever, the product or packaging containing PFAS likely could not be labeled as degradable in Michigan.
Consumer-product brands should therefore be aware of not only the Green Guides, but also state laws that may impose different or additional requirements on products making environmental representation.
Beyond the FTC and states, private litigants have filed dozens of class action cases alleging false advertising of products containing PFAS. Plaintiffs have challenged the marketing of a range of product classes, including disposable silverware, cosmetics, dental floss, sports drinks, menstrual products, water filters, food packaging, antifog spray, cookware, children’s school uniforms, juices and smoothies, pet food, clothing, firefighting gear, popcorn, children’s car seats, and butter. See, e.g., Complaint, Little v. NatureStar N. Am. LLC, No. 1:22-cv-00232 (E.D. Cal. Feb. 24, 2022). In these cases, plaintiffs have challenged many green marketing representations that include the following claims: “100% free from PFAS,” “100% ingredients from natural sources,” “all natural,” “compostable,” “consciously crafted with ingredients from nature,” “designed with sustainability in mind,” “kind to skin and planet,” “only real ingredients,” “safe from farm to fork,” and “toxic chemical free.”
This list is not exhaustive, and plaintiffs have been creative in their pleading. For example, even omissions about PFAS can trigger litigation. In one case, a plaintiff targeted dental floss allegedly containing PFAS without identifying any affirmative misrepresentation about that alleged chemical content. See Complaint, Andrews v. Procter & Gamble Co., No. 5:19-cv-00075 (C.D. Cal. Jan. 11, 2019). In other cases, plaintiffs took issue with products that purported to have certain health benefits because they failed to also mention the health risks of PFAS allegedly present within. See Complaint, Dalewitz v. The Procter & Gamble Co., No. 7:22-cv-073230NSR (S.D.N.Y. Aug. 26, 2022).
These sorts of cases may be attractive to plaintiffs’ attorneys for several reasons. First, the cost of investigation is low. Publicly available information combined with information obtained through public records requests can point to a number of product classes that may contain PFAS. Then, it is a matter of testing products in those classes for fluorine or PFAS, which most well-known testing labs can do at a fairly low cost. Even simpler, counsel can rely on test results published by consumer-watchdog groups, at no cost. Second, such cases are amenable to certifying plaintiff classes. Given the straightforward alleged injury pattern among class members in this context (i.e., relying on false advertising and consequently paying too much for the product), the typical challenge to a class action including numerosity, commonality, typicality, and adequacy of representation tends to be a low hurdle. Third, false-advertising claims are relatively inexpensive to litigate and therefore can be brought with low risk. A plaintiff’s counsel merely needs to identify relevant representations on the marketing materials of a product. By nature, these representations are consumer-facing and are thus publicly available. Further, problematic representations may be found anywhere—in tags, labels, and online product listings, but also in statements by corporate officers in press releases, company policy webpages, and SEC filings. Once a class action representation case is filed, a court’s determination as to whether the representation is false or misleading can often be decided in a motion to dismiss for failure to state a claim. And, practically speaking, a class action case that survives a motion to dismiss will almost certainly be settled. See generally Thomas E. Willging et al., Empirical Study of Class Actions in Four Federal District Courts: Final Report to the Advisory Committee on Civil Rules, Fed. Jud. Ctr. (1996).
PFAS-related greenwashing cases that do not progress this far have tended to falter on one of several legal grounds. The most basic obstacle has been standing. Owing in part to the near impossibility of proving personal injury from PFAS from a particular consumer product, standing in false-advertising PFAS cases has typically been based on the price-premium theory. See, e.g., Complaint, Didwania v. Hexclad Cookware, Inc., No. 2:23-cv-05110 (C.D. Cal. June 27, 2023). Under this theory, a plaintiff alleges that the defendant marketed a product as having a certain quality that allowed the company to charge a price premium for the product, and the plaintiff paid the premium but later learned that the product, in fact, lacked that marketed quality, which is pleaded as an economic injury. Id. Courts have tended to accept the price-premium theory, but only when it is artfully pleaded. See, e.g., Kanan v. Thinx Inc., No. CV2010341JVSJRPX, 2021 WL 4464200, at *6 (C.D. Cal. June 23, 2021). A plaintiff must allege at minimum that the product was purchased in the state whose false-advertising cause of action is invoked, and that the marketing was misleading and did mislead. Courts have dismissed lawsuits for lack of standing where inartful pleading of the price-premium theory omitted mention of reliance on the alleged misrepresentation, the presence of PFAS in the specific product purchased (as opposed to PFAS within the product class), and actual purchase of the specific product. See, e.g., Onaka v. Shiseido Americas Corp., No. 21-CV-10665-PAC, 2023 WL 2663877, at *5–6 (S.D.N.Y. Mar. 28, 2023). Courts have also rejected on standing grounds plaintiffs’ attempts to certify nationwide classes where the plaintiffs did not purchase PFAS-containing products in every state. Richburg v. Conagra Brands, Inc., No. 22 CV 2420, 2023 WL 1818561, at *6 (N.D. Ill. Feb. 8, 2023).
Several PFAS-related greenwashing cases have also been dismissed for failure to state a claim under the heightened pleading requirements of Rule 9(b). See, e.g., Hamman v. Cava Grp., Inc., No. 22-CV-593-MMA (MSB), 2023 WL 3450654, at *7–11 (S.D. Cal. Feb. 8, 2023). The most common argument for dismissal has been that the identified misrepresentations would not deceive a reasonable consumer as a matter of law. Id. at *10–11. In one case concerning microwave popcorn in which the packaging allegedly contained PFAS, the defendant persuaded the court that statements to the effect that the popcorn contained only “real and natural ingredients” did not mislead because a reasonable consumer understands “ingredients” to refer to the components of the food itself, not substances present in the food’s packaging. Richburg, 2023 WL 1818561, at *7. Likewise, in an action against a cosmetics brand, the U.S. District Court for the Southern District of California determined that a reasonable consumer would not be misled by aspirational corporate mission statements, which were at most unactionable puffery, and that a representation that the cosmetic was safe to use was not proven false simply by the alleged presence of PFAS in the product. Brown v. Coty, Inc., No. 22 CIV. 2696 (AT), 2023 WL 2691581, at *4 (S.D.N.Y. Mar. 29, 2023). In contrast, the U.S. District Court for the Central District of California held that a claim for breach of express warranty was plausibly pleaded where period underwear allegedly containing PFAS had been advertised as “free of harmful chemicals.” Kanan, 2021 WL 4464200, at *6.
Defendants have raised several other defenses, but these have not yet been seriously considered by courts. For example, in cases implicating food, drugs, or cosmetics, many defendants have suggested that federal law preempts omission claims based on state-law causes of action. See, e.g., Brief Supporting Motion to Dismiss, Hicks v. L’Oreal USA, Inc., No. 1:22-cv-01989-JPC (S.D.N.Y. June 24, 2022). The idea is that state law cannot impose labeling requirements on food, drugs, and cosmetics that are different from, and additional to, those required under federal law. Relatedly, some defendants have sought stays of cases under the doctrine of primary jurisdiction, arguing that Congress has entrusted to federal agencies like the FDA the task of sorting out thorny, technical issues like the safety of food, drugs, or cosmetics—not lay judges and juries. Id.
Most of these cases are still pending or may be refiled following voluntary dismissal, but several cases have settled. The largest number so far was the Thinx settlement, mentioned previously, for up to $5 million. One of the first PFAS-related greenwashing cases, involving disposable silverware, was dismissed after the parties reached a class settlement agreement of claims for injunctive relief and the defendant’s payment of nearly $200,000 in attorney fees and expenses. See Order Approving Final Settlement, Ambrose v. Kroger Co., No. 3:20-cv-04009 (N.D. Cal. Sep. 30, 2021). In addition, one plaintiff’s individual claims regarding an antifog spray allegedly containing PFAS were settled for an undisclosed amount, without prejudice to class claims. Notice of Settlement, DaWood v. Gamer Advantage LLC, No. 2:22-cv-00562-WBS-KJN (E.D. Cal. Nov. 16, 2022). These early indicators show that for some consumer product manufacturers, the certainty of settlement outweighs potential loss in litigation.
The days when a brand could slap a few environment-related buzzwords on its products without scrutiny are long gone. To protect against litigation and enforcement risk, consumer-product manufacturers and brands operating in industries in which PFAS is used, or could be used in the supply chain, should evaluate their green-marketing claims for compliance with the reasonable-consumer test, the Green Guides, and state law. Green-marketing representations will be dissected by consumers, regulators, and private litigants, who have shown a willingness to go so far as to test a product for PFAS in order to falsify any green claims made about the product. As awareness of PFAS grows in parallel with the scientific consensus around its ubiquity, we will almost certainly see more false advertising cases in the coming years.
