I had the opportunity to travel to New Orleans a few weeks ago for the American Agricultural Law Association’s (AALA) annual symposium. I have to say, I’m not a fan of the city. The food was great, and the weather was amazing compared to home (where we were getting our first snow of the year!). But, other than that, I won’t be in a big hurry to go back. Bourbon Street was not for me, and I saw a few too many rats in the streets. That’s not a bad lawyer joke; we’re talking legit roaming rodents!

Despite my dislike of the location, this year’s symposium had great sessions and speakers and definitely was worth the trip to get my annual allotment of continuing legal education credits. Even in my new role as vice president of operations for a sustainability consulting company, I found great takeaways. Perhaps the most interesting were the sessions I attended about greenwashing claims. If you aren’t familiar with the term, you should brush up.

Greenwashing, as a term, has actually been around since 1989, when it was coined to describe corporate environmental claims used to distract consumers from the true story. They were hogwash, if you will. Complete nonsense.

Chevron was one of the first companies tagged for greenwashing. You may remember the ads showing their employees protecting bears and butterflies and sea turtles. The campaign was effective, but it was also at a time when consumers got news from three primary sources — TV, radio and print media. It was easier to control the narrative and present yourself as a good environmental steward when in all reality your environmental practices were unsustainable at best and, more likely, just downright detrimental.

Flash forward 30 years and greenwashing has evolved, but now it isn’t just a reputational matter, it’s potentially becoming a matter for class action litigation, or if you are publicly traded, governmental enforcement. Do I have your attention yet? If your company is making any type of sustainability claims, I hope I do. And, when I refer to claims, I don’t just mean in advertising. This could extend to any type of public facing statement or report you are issuing.

Sustainability is a nebulous concept we have been talking about for years now, but, even today, if you ask a room full of one hundred people, you will likely get one hundred different definitions. How in the world can something so grey be a basis for litigation, you ask? Because, as companies have made sustainability claims, they haven’t always been backed up by action or data. Thus, consumers (encouraged by savvy plaintiffs’ lawyers who smell another kind of green) are demanding companies provide evidence they’re doing what they say. While cases to date have had mixed results, those plaintiffs’ lawyers will get smarter as they go. And we will likely see more regulation in this space, which would give rise to more potential causes of action.

As more and more companies are required to develop ESG (Environmental, Social, & Governance) reports, either for regulatory reasons or as a supply chain requirement from customers, there are steps we can take to protect ourselves. Here are few things to think about:

Make sure any claims you are making on packaging, in advertising, or in any public reports have a basis and any certifications or standards you are citing are vetted and based on facts and/or science. Hard data will be your friend – don’t risk long-term legal challenges for short-term savings by not investing in gathering the necessary data now.

Be cautious about making broad statements, especially aspirational claims, about commitments to ethics or sustainability. Ask, “how would I validate this if asked?” and be sure your marketing teams are working closely with legal evaluate potential risk.

Continue to monitor consumer litigation in this space, along with all federal and state regulatory and enforcement developments. Or ensure you have a partner who is keeping an eye on the landscape for you. This isn’t going away and will be something to have on the radar for the foreseeable future.

There you have it, friends. A free legal lesson from AALA in Louisiana and you didn’t even have to travel. Or, dodge rats in the street. Consider it an early Christmas present!

Greenwashing: It’s not hogwash

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