By: Ella Walton
In today’s day and age, many are looking to companies to begin implementing more sustainable practices throughout their businesses. Eco-friendly practices enable companies to continue to grow, while considering social responsibilities to preserve the future health of consumers and the planet alike.[1]
Per a 2017 survey, 92% of consumers believe they are more likely to trust brands which are environmentally or socially conscious, and 88% of consumers believe themselves to be more loyal to a company which supports social or environmental issues; more generally, 87% of consumers have more positive images of companies supporting these issues.[2] Globally, companies implementing these practices typically promote specific sustainable products or consumer benefits of sustainable actions, or reaffirm the company’s commitment to sustainability. Many of these missions relate to plastic reduction, conserving and reusing resources, sustainable energy usage, climate neutrality, and donating to sustainable projects; Managing Director of Nielsen Germany, Dirk Reinbothe, believes these missions are highly motivated by businesses seeking to appeal emotionally with their consumers [3]
Given the increasing consumer demand for eco-conscious business practices and products, it’s no surprise companies may attempt to falsely claim such practices in the name of profit. This misrepresentation is referred to as “greenwashing,” primarily defined by the Oxford English Dictionary as “, to mislead [the public] or counter [public or media concerns] by falsely representing a person, company, product, etc., as being environmentally responsible.”[4]
Although greenwashing lacks a universally respected legal definition, suits grounded in this theme continue to rise in prevalence nationally through common law allegations of false advertising, fraud, unjust enrichment, and breach of warranty, as well as through state consumer fraud protection statutes. New York State allows such claims to be brought through its General Business Law §§ 349, 350, prohibiting deceptive business practices, and false advertising, respectively.[5]
This increase in litigation relating to greenwashing is consistent with recent findings from the Capgemini Research Institute; in 2024, 52% of global consumers believed organizations were engaging in greenwashing with their sustainability initiatives, an increase from a third of global consumers in 2023.[6] As recently as February 2025, a group of customers of W.L. Gore & Associates, the company which produces Gore-Tex Fabric, filed a complaint in the Eastern District of Washington supported by state common law and consumer protection laws. Among the complainants’ various allegations, are that the company has failed to disclose to consumers its utilization of perfluorinated based chemicals (PFC) in its manufacturing of Gore-Tex, as well as the shedding of these chemicals. Essentially, the complaint alleges that Gore purposely and deceptively excluded commonly regarded PFC-based chemicals from their definition of “PFC* Free Laminate” statement included on their product’s tags to bolster their product’s appearance of sustainable manufacturing.[7] Studies have suggested PFCs to potentially harm consumer’s health in numerous ways such through elevated thyroid hormone levels, early menopause, and even higher levels of cholesterol.[8]
The Federal Trade Commission (FTC) began to tackle the fraudulent practice of greenwashing in 1996 through its publication of Green Guides for the Use of Environmental Claims, subsequently revised in 1996, 1998, 2012; these guides include general principles which related to environmental marketing claims generally, anticipated consumer perceptions of various claims and methods of substantiating and qualifying environmental claims to best avoid consumer deception. [9] Currently, the Green Guides are in revision with the FTC seeking public comment on proposed changes in December 2022, citing motivation as a continually increasing consumer consciousness to environmental impacts of their purchases.[10]
In March 2021, the Securities and Exchange Commission (SEC) announced a Climate and ESG Task Force in the enforcement division, seeking the elimination of “material gaps or misstatements” in security issuers’ disclosure of climate risks, as well as disclosure and compliance of investment advisors relating to environmental, social, and governance (ESG) funds.[11] The task force has since been quietly halted, its website disappearing in June 2024.[12] It is unclear whether the SEC will undertake future similar initiatives in light of the recent election.
Greenwashing claims provide an avenue for consumers to hold companies accountable for destructive business practices which negatively affect the health and safety of both individuals and our planet. It is important to continue to identify such practices, to further decrease the inclination of brands and companies to exploit and monopolize on consumer’s environmental concerns, without adequate contribution to the preservation of consumers’ safety and health.
[1] Sustainable marketing: the what and why, Doorway, https://www.doorway.io/blog/sustainable-marketing/ (last visited Feb. 21, 2025).
[2] Adam Butler, Do Customers Really Care About Your Environmental Impact?, Forbes (Nov. 21, 2018, 8:00 AM), https://www.forbes.com/councils/forbesnycouncil/2018/11/21/do-customers-really-care-about-your-environmental-impact/.
[3] Nielsen study reveals: Sustainability-themed advertising is here to stay, Nielsen (July 2023), https://www.nielsen.com/news-center/2023/nielsen-study-reveals-sustainability-themed-advertising-is-here-to-stay/.
[4] Greenwash, Oxford Eng. Dictionary (Dec. 2023), https://www.oed.com/dictionary/greenwash_v?tab=meaning_and_use#11644342.
[5] N.Y. Gen. Bus. Law § 349; N.Y. Gen. Bus. Law § 350.
[6] A world in balance 2024: Accelerating sustainability amidst geopolitical challenges, Capgemini Rsch. Inst. (2024), https://www.capgemini.com/insights/research-library/sustainability-trends-2024/.
[7] Mason et al. v. W. L. Gore & Associates, No. 2:25-cv-00049 (E. D. Wash. Feb. 11. 2025).
[8] Firefighting and Your Health: Perfluorinated Chemicals (PFCs), Alaska Cnty. Action on Toxics, https://www.akaction.org/wp-content/uploads/Fact-Sheet-PFCs-IAFF.pdf (last visited Feb. 21, 2025).
[9] Environmentally Friendly Products: FTC’s Green Guides, Fed. Trade Comm’n, https://www.ftc.gov/news-events/news/press-releases/2022/12/ftc-seeks-public-comment-potential-updates-its-green-guides-use-environmental-marketing-claims (last visited Feb. 21, 2025).
[10] Potential Updates to its ‘Green Guides’ for the Use of Environmental Marketing Claims, Fed. Trade Comm’n (Dec. 14, 2022), https://www.ftc.gov/news-events/news/press-releases/2022/12/ftc-seeks-public-comment-potential-updates-its-green-guides-use-environmental-marketing-claims.
[11] SEC Announces Enforcement Task Force Focused on Climate and ESG Issues, SEC (Mar. 4, 2021), https://www.sec.gov/newsroom/press-releases/2021-42.
[12] Andrew Ramonas, SEC Abandons ESG Enforcement Group Amid Broader Backlash (1), Bloomberg Law (Sept. 12, 2024, 3:17 PM), https://news.bloomberglaw.com/esg/sec-quietly-dissolves-climate-and-esg-enforcement-task-force.