Conscious Choice

May 18, 2023

H&M, Nike and Greenwashing’s Legal Frontier The FA via Getty Images H&M has managed to fend off a class-action lawsuit accusing it of overstating its sustainability claims, a.k.a. greenwashing . Nike ’s fight over a similar complaint, on the other hand, is only just beginning. On May 12, Judge Rodney W. Sippel of the Eastern District of Missouri dismissed plaintiffs Abraham Lizama and Mark Doten’s claims against H&M under Missouri’s Merchandising Practices Act (MMPA), citing their “failure to state claims” against the Swedish fast fashion giant. Both Lizama and Doten, according to a complaint filed in November, had paid premium prices for items from H&M’s Conscious Choice collection with the assumption that they were made with environmentally friendlier practices. The plaintiffs would later feel misled, the lawsuit said, because the garments contain a high percentage of polyester derived from recycled plastic bottles, which cannot be reprocessed at scale and is, therefore, a “one-way street to landfill or incineration,” as described by the Changing Markets Foundation in a 2021 report . Sippel agreed with H&M that the lawsuit made no allegation or argument that the retailer is subject to general jurisdiction in Missouri as it is neither a Missouri corporation nor does it have its principal place of business in the state. Doten, as a California resident, also alleges no connection to Missouri and so lacks personal jurisdiction, he said. Related Stories H&M persuaded Sippel that Lizama, despite being a Missouri resident, did not provide sufficient factual matter that can be accepted as true. The clothing purveyor contended that Lizama’s claims “fail” because it “never made a misrepresentation of fact” regarding its Conscious Choice collection. Despite Lizama’s repeated use of the phrase “environmentally friendly” in the complaint, H&M said, it “never actually” describes its Conscious Collection pieces as such in its marketing. Rather, the chain states that those items contain “more sustainable materials” and that the line itself includes “its most sustainable products.” Because the “only reasonable reading of H&M’s advertisements is that the Conscious Choice collection uses materials that are more sustainable than its regular materials,” Sippel wrote in his judgment, Lizama’s claims must be dismissed for failure to state a claim. Sippel similarly waved away Lizama’s allegations that clothing made with recycled polyester is not “more sustainable” because it’s primarily sourced from PET bottles. “Even if the court accepts these allegations about recycling as true for purposes of this motion only, the court need not accept the allegation that a reasonable consumer would compare conscious choice clothing made from recycled polyester to PET bottles when evaluating whether recycled polyester is a ‘more sustainable material’ as it is not plausible on its face,” he said. “Instead, the relevant comparison is whether one garment using recycled polyester is more sustainable than another garment using non-recycled (also known as virgin) polyester.” As such, Sippel said, Lizama’s allegations fail to meet the plausibility standard because H&M provides consumers with “copious amounts” of information about the relevant differences between recycled and virgin polyester on its website. Because the retailer disclosed everything Lizama needed to determine the “source, composition and relevant comparison” used in its Conscious Choice collection, he added, any claims that Lizama was misled into believing something that was never represented by H&M “must fail.” As for Lizama’s assertions that H&M’s alleged misrepresentations constitute an “unfair practice” under the MMPA because they violate the Federal Trade Commission (FTC) Green Guides for implying “environmental benefits that do not exist,” Sippel was also skeptical, stating that H&M has “not made any unqualified environmental benefit claims” but rather “substantiated and qualified” its representations regarding its Conscious Collection. “H&M is dedicated to transparency and works hard to reduce the impact of fashion on the environment,” a spokesperson told Sourcing Journal. “We are grateful that the court agreed that H&M accurately informs consumers of its sustainability efforts and conveys accurate information about its products and in its advertising when it dismissed the plaintiff’s “greenwashing” claims in total.” Even so, H&M is still on the hook for a similar lawsuit that was filed in the Southern District of New York in July by Chelsea Commodore, who argued that the apparel maker’s use of data from the controversial Higg Materials Sustainable Index to qualify many of its sustainable claims resulted in “falsified information” on hundreds of items. The discharged complaint also harbored a near-identical grouse over H&M’s use of recycled polyester, which the retail titan, in a letter to Judge Cathy Seibel on May 15, suggested could “assist” the New York court in “resolving the pending motion to dismiss.” “Both Lizama and the case at bar are premised upon alleged misrepresentations contained in H&M’s Conscious Choice product line,” H&M wrote. “While Lizama involved Missouri statutory and common law claims, the central analysis in that case is identical to the one here: namely, whether H&M’s Conscious Choice representations are deceptive and misleading to a reasonable consumer.” ‘Not sustainable, not made from sustainable materials and not environmentally friendly’ Nike’s own brewing class-action lawsuit, filed May 10 in the Eastern District of Missouri, treads a familiar path as H&M’s, with plaintiff Maria Guadalupe Ellis claiming that the sportswear Goliath is deceiving consumers by “falsely and misleadingly” marketing its products as “sustainable,” “made with sustainable materials” and “environmentally friendly” while supporting a “Move to Zero,” a reference to Nike’s campaign to generate zero carbon and zero waste. “Contrary to these representations, the products plainly do not lead to ‘sustainability,’ are not ‘made with recycled fibers’ which ‘reduce waste and our carbon footprint,’ do not support a ‘Move To Zero carbon and zero waste,’ and they are not made with ‘sustainable’ and environmentally friendly materials because the products are not sustainable, and are not made from sustainable and environmentally friendly materials that are less harmful to the environment,” the complaint said. It accused Nike of “misleadingly, illegally and deceptively” capitalizing on consumers’ increased willingness to shell out more for greener products. Nike did not respond to a request for comment. Like Commodore and Lizama with H&M, Ellis opposed Nike’s use of synthetic textiles like recycled polyester, to prop up a tree-hugging image centered around “‘green’ imagery with models and cartoon characters surrounded by lots of flowers and plush green plants.” Because they are still plastic and will therefore “sit in a landfill for hundreds of years,” they are “not ‘sustainable’ and do not ‘reduce waste and our carbon footprint,’” the complaint said. “Nor do they support a ‘Move To Zero carbon and zero waste.’” Turning plastic bottles into fabric, it added, takes them out of a truly closed-loop system, where they can be recycled multiple times, and puts them on a “one-way street to landfill or incineration.” The lawsuit offers a comparable argument against recycled nylon, which “just delays the inevitable…essentially moving plastic from the ocean to the landfill.” “Basing sustainability strategies on the idea that consumers can continue to consume disposable plastic goods (because they can be recycled into more products) is highly problematic,” it said. “This method of ‘green’ marketing does not address the fundamental issue of perpetuating disposable solutions and over-consumption of natural resources. Indeed, these strategies encourage consumers to buy more clothes or throw away garments sooner, in the belief they can be recycled in some magic machine.” The complaint also accuses the Jordan maker of outfitting its Sustainability Collection with predominantly virgin synthetic materials. Of the 2,452 Nike Sustainability Collection products it identified, only 239 products—or almost 10 percent—are made with any recycled material, it said. Nike’s claim that 90 percent of its Sustainability Collection is “made with recycled fibers” that “reduce waste and our carbon footprint, is therefore false, the lawsuit said. The vast majority of Nike’s Sustainability Collection, in fact, is made from “plastic-based materials” that require “loads” of extraction and processing energy, shed harmful microplastics, do not biodegrade and cannot be recycled, it said Ellis said she would not have paid a premium for items from Nike’s Sustainability Collection, including a Dri-Fit One cropped top and a Dri-Fit One tank, from a Dick’s Sporting Goods store in St. Louis County had she known that “they were not sustainable, not made from sustainable materials and not environmentally friendly.” Like Lizama’s, Ellis’s complaint invokes the Green Guides, which cautions companies about exaggerating environmental marketing claims. Nike, the lawsuit said, contravenes the FTC’s recommendations by “mispresenting” its products as better for the environment than they are through labeling, marketing and advertising. Still, Ellis said it was “possible” that she would purchase Sustainable Collection products from Nike in the future if they were properly labeled and/or if they complied with its labeling and advertising statements. “Nike has profited enormously from its false and misleading representations that the products are ‘sustainable,’” the lawsuit said. “The purpose of this action is to require Nike to undertake a corrective advertising campaign and to provide consumers with monetary relief for Nike’s deceptive and misleading product claims.” Read More About