A wave of anti-“greenwashing” litigation is seeking to hold major players in the aviation industry to account for sensational claims of being sustainable, low-carbon or contributing to net zero. While the industry has faced legal backlash in the past, the dramatic proliferation of these cases may spell disaster for major airlines. It is not hard to see why the aviation industry has provoked the ire of climate activists. Flying is responsible for a staggering 5 percent or so of human-induced global warming and its climate impact is still growing at a rate far greater than almost any other sector. In this context, a profusion of “green flying” and “sustainability” advertising campaigns has turned the industry into an emblematic example of the debate between growth and sustainability.
The rise in greenwashing litigation can be attributed in part to the relative ease with which cases can be brought. It is a lot easier to attack an airline’s advertising compared to other activities that might be targeted by strategic climate litigation. Consumers can use legal mechanisms, such as commercial practice or consumer protection regulations, as happened in a recent greenwashing complaint to the European Commission filed by consumer groups in nineteen countries against seventeen airlines. It is an effective form of climate action due to the power exerted by advertising on public perception and social norms.
The UN’s Intergovernmental Panel on Climate Change underscored the importance of reducing demand for flying in the first place, something significantly hindered by advertisements that downplay its environmental impact. A report by Greenpeace and think tank the New Weather Institute claimed that in 2019, airline advertisements influenced 34 million tons of CO2 equivalent emissions worldwide.
This potential for litigation is also buoyed by the demonstrable falsehoods that riddle the sustainability strategies of companies in the segments of the mark. The pillars upon which their net-zero strategies rest vary from the broadly ineffective to the dangerously fraudulent and facilitate growth in a sector in dire need of reduction. Airlines all rely on some form of carbon offsetting – planting trees, for instance, to “offset” the carbon emitted by the planes – or sustainable aviation fuel or carbon capture and storage, in order to “mitigate” their climate impacts.
Common greenwashing litigation strategies
Thus far, there have been at least six climate change-related cases brought against major airlines (four in Europe, one in the U.S., and one in Brazil). These cases are buttressed by numerous legal complaints taken by the European Commission or the UK and U.S. advertising standards boards, which have already successfully ordered Ryanair, Lufthansa and Etihad to pull climate-centric ad campaigns. In each of these three cases, authorities found that terminology like “protecting the future,” “sustainable aviation,” or “low-emissions airline” amounted to willful misleading of consumers and breached advertising regulations.
A recent case taken by Dutch campaigners against airline giant KLM is the most daring example to date. Climate action group FossielVrij (Fossil-free) argues that KLM’s “Fly Responsibly” campaign constitutes misleading advertising under EU consumer law. The group asserts that flying responsibly is impossible at present, and that KLM seeks company growth and increased flight sales when it should be reducing emissions by reducing the number of flights. KLM said its “communications comply with the applicable legislation and regulations,” but has, nonetheless, dropped the “Fly Responsibly” campaign.
Interestingly, this case builds upon a ruling from the Dutch Advertisement Code Commission and indicates the “snowballing” trend inherent in anti-greenwashing litigation, wherein cases rely upon precedent set by previous authorities. With this in mind, the recent nineteen-country complaint that the European Consumer Organisation filed with the European Commission could provide the strongest foundation to date for future litigation.
All the while, Delta Airlines is also facing a class action suit in the U.S., brought by a California resident who alleges that by marketing itself as a “carbon-neutral,” Delta has grossly misrepresented its environmental impact. This points to a growing understanding of the ineffectiveness of carbon offsetting, a net-zero tactic adopted by almost every major airline. A Delta spokesperson said the case is “without legal merit,” as the airline has “transitioned its focus away from carbon offsets” towards decarbonizing its own activities. European companies should follow this case closely as American-style class action litigation will soon be made possible in the EU.
Does this litigation have teeth?
These cases might result in companies simply pulling their green advertising campaigns while maintaining their existing corporate framework and growth models. More promisingly, recent research suggests that any climate-related case taken against a major emitting company will affect the firm’s value (on average by 0.057 percent following the filing of a case, and by 1.5 percent following an unfavorable decision). In reality, these early cases are merely scratching the surface of what is possible. Once these cases enter the public conversation, a growing understanding of consumer protection is bound to follow.
In many jurisdictions, significant damages can be awarded against companies for misleading advertisements. The UK’s Competition and Markets Authority, for example, which is currently investigating claims of greenwashing in other sectors, will soon be able to fine companies 10 percent of their global turnover for non-compliance.
While anti-greenwashing litigation might not halt the growth of the airline industry altogether, it is no doubt an invaluable tool. At its most effective, it can stop blatant profiteering from the climate crisis and force the aviation sector to confront the chimera that is green growth.
Fashion Isn’t Far Behind
Looking beyond aviation for a moment, few sectors make such extravagant sustainability claims while maintaining such profligate consumption of resources as the fashion industry. This has already given rise to litigation in the U.S., with a growing number of greenwashing cases being waged against major fashion/retail companies. Commodore v. H&M, for instance, was the first putative class action brought against Swedish fashion giant H&M over its sustainability marketing claims. This was followed by the since-dismissed case, Lizama v. H&M, in which the consumer-plaintiff argued that the fast fashion company’s representations that its products are a “conscious choice,” more “sustainable,” and ‘environmentally friendly” amount to “false and misleading representations.” Sephora, REI, Allbirds, Nike, and Canada Goose, among other companies, have also found themselves embroiled in greenwashing controversies. In the ongoing case against Nike, the plaintiff asserts by way of a class-action complaint that the sportswear behemoth has made misrepresentations in its “move to zero” campaign.
Not limited to the U.S. market, the UK’s Competition Market Authority (“CMA”) and Advertising Standards Authority have already shown interest in fashion retailers as part of their greenwashing investigations. In July of last year, the UK’s CMA began a formal investigation into ASOS, Boohoo, and George (ASDA) over potentially misleading eco-friendly and sustainability claims about their products. In dealing with a similar issue, the Dutch consumer authority warned fashion retailers not to use the Higg Material Sustainability Index to substantiate green claims due to worrying shortcomings in its lifecycle assessment for various materials.
The European Parliament and Council also reached a preliminary agreement on new regulations designed to clamp down on greenwashing and premature obsolescence of products that could seriously impact the fashion industry’s labelling and marketing strategies. These regulations – paired with ongoing investigations – show that like, aviation, the retail industry is a fruitful avenue for misrepresentation claims and greenwashing litigation in this sphere is not going away any time soon.
Calum Maclaren is a PhD Candidate in Climate Litigation at University College Dublin.
Share
