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A wave of\u00a0anti-\u201cgreenwashing\u201d litigation<\/a>\u00a0is 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\u00a05 percent or so of human-induced global warming<\/a>\u00a0and its climate impact is still growing at a rate far greater than almost any other sector.\u00a0In this context, a profusion of \u201cgreen flying\u201d and \u201csustainability\u201d advertising campaigns has turned the industry into an emblematic example of the debate between growth and sustainability.<\/p>\n The rise in greenwashing litigation<\/a> can be attributed in part to the relative ease with which cases can be brought. It is a lot easier to attack an airline\u2019s advertising compared to other activities that might be targeted by strategic climate litigation.\u00a0Consumers can use legal mechanisms, such as commercial practice or consumer protection regulations, as happened in a recent\u00a0greenwashing complaint to the European Commission<\/a>\u00a0filed by consumer groups in nineteen countries against seventeen airlines. It\u00a0is\u00a0an effective form of climate action due to the power exerted by advertising on public perception and social norms.\u00a0<\/p>\n The UN\u2019s\u00a0Intergovernmental Panel on Climate Change<\/a>\u00a0has underscored the importance of reducing demand for flying in the first place, something significantly hindered by advertisements that downplay its environmental impact. A\u00a0report<\/a>\u00a0by Greenpeace and think tank the\u00a0New Weather Institute<\/a>\u00a0claimed that in 2019, airline advertisements influenced 34 million\u00a0tons\u00a0of CO\u2082 equivalent emissions worldwide.<\/p>\n 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\u00a0broadly ineffective<\/a>\u00a0to the\u00a0dangerously fraudulent<\/a>\u00a0and facilitate growth in a sector in dire need of reduction.\u00a0Airlines all rely on some form of carbon offsetting<\/a> \u2013 planting trees, for instance, to \u201coffset\u201d the carbon emitted by the planes \u2013 or sustainable aviation fuel or carbon capture and storage, in order to \u201cmitigate\u201d their climate impacts.<\/p>\n Thus far, there have been 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\u00a0Ryanair<\/a>,\u00a0Lufthansa<\/a>\u00a0and\u00a0Etihad<\/a>\u00a0to pull climate-centric ad campaigns. In each of these three cases, authorities found that terminology like \u201cprotecting the future,\u201d \u201csustainable aviation,\u201d or \u201clow-emissions airline\u201d amounted to willful misleading of consumers and breached advertising regulations.<\/p>\n A recent case taken by Dutch campaigners against\u00a0airline giant KLM<\/a>\u00a0is the most daring example to date. Climate action group\u00a0FossielVrij<\/a>\u00a0(Fossil-free) argues that KLM\u2019s \u201cFly Responsibly\u201d campaign constitutes misleading advertising under EU consumer law.\u00a0The 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.\u00a0KLM said<\/a>\u00a0its \u201ccommunications comply with the applicable legislation and regulations,\u201d but has, nonetheless, dropped the \u201cFly Responsibly\u201d campaign.<\/p>\n Interestingly, this case builds upon a ruling from the\u00a0Dutch Advertisement Code Commission<\/a>\u00a0and indicates the \u201csnowballing\u201d 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\u00a0filed with the European Commission\u00a0could provide the strongest foundation to date for future litigation.<\/p>\n All the while, Delta Airlines is also facing a\u00a0class action suit in the U.S<\/a>., brought by a California resident who alleges that by marketing itself as a \u201ccarbon-neutral,\u201d Delta has grossly misrepresented its environmental impact. This points to a growing understanding of the\u00a0ineffectiveness of carbon offsetting<\/a>, a net-zero tactic adopted by almost every major airline.\u00a0A Delta\u00a0spokesperson<\/a>\u00a0said the case is \u201cwithout legal merit,\u201d as the airline has \u201ctransitioned its focus away from carbon offsets\u201d towards decarbonizing its own activities. European companies should follow this case closely as American-style class action litigation will soon be\u00a0made possible in the EU<\/a>.<\/p>\n These cases might result in companies simply pulling their green advertising campaigns while maintaining their existing corporate framework and growth models. More promisingly,\u00a0recent research<\/a>\u00a0suggests that any climate-related case taken against a major emitting company will affect the firm\u2019s value (on average by 0.057 percent following the filing of a case, and by 1.5 percent following an unfavorable decision).\u00a0In 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.<\/p>\n In many jurisdictions, significant damages can be awarded against companies for misleading advertisements. The UK\u2019s Competition and Markets Authority, for example, which is currently investigating claims of greenwashing in other sectors, will soon be able to\u00a0fine companies 10 percent of their global turnover<\/a>\u00a0for non-compliance. <\/p>\n 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.<\/p>\n 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.\u00a0Commodore v. H&M<\/a><\/em>, 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<\/a>,<\/em>\u00a0in which the consumer-plaintiff argued that the fast fashion company\u2019s representations that its products are a \u201cconscious choice,\u201d more \u201csustainable,\u201d and \u2018environmentally friendly\u201d amount to \u201cfalse and misleading representations.\u201d Sephora<\/a>, REI, Allbirds<\/a>,\u00a0Nike<\/a>, and\u00a0Canada Goose<\/a>, among other companies, have also found themselves embroiled in greenwashing controversies. In the ongoing case against Nike<\/a>, the plaintiff asserts by way of a class-action complaint that the sportswear behemoth has made misrepresentations in its \u201cmove to zero\u201d campaign.<\/p>\n Not limited to the U.S. market, the UK\u2019s Competition Market Authority (\u201cCMA\u201d) and Advertising Standards Authority have already shown interest in fashion retailers<\/a> as part of their greenwashing investigations. In July of last year, the UK\u2019s CMA began a formal investigation<\/a> 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 recently warned fashion retailers not to use the Higg Material Sustainability Index<\/a> to substantiate green claims due to worrying shortcomings in its lifecycle assessment for various materials.<\/p>\n The European Parliament and Council have 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\u2019s labelling and marketing strategies. These regulations \u2013 paired with ongoing investigations \u2013 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.<\/p>\n Calum Maclaren<\/strong> is a PhD Candidate in Climate Litigation at University College Dublin. (This article was initially published by The Conversation.)<\/p>\n<\/p><\/div>\nCommon greenwashing litigation strategies<\/h2>\n
Does this litigation have teeth?<\/h2>\n
Fashion Isn\u2019t Far Behind<\/h2>\n
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