Abraham Lizama purchased a turquoise sweater from H&M’s Conscious Choice” collection, a line of clothing created with a little extra consideration for the planet” which generally include at least 50% of more sustainable materials.” Although we imagine that Lizama looked quite handsome in his sweater, he soon regretted his purchase and filed a class action against the retailer, accusing it of greenwashing because the sweater did not meet his view about what’s good for the environment.

Lizama argued that H&M misled consumers into thinking that its Conscious Choice collection was environmentally friendly.” (By our count, that phrase appears more than 100 times in the complaint.) The court pointed out, though, that H&M never actually uses that phrase to describe its garments. Moreover, H&M does not represent that its Conscious Choice products are sustainable” – only that the line includes more sustainable materials” and its most sustainable products,” which the court said are obvious comparisons to H&M’s regular materials.

Lizama argued that the garments were not sustainable because recycling PET plastics into clothing isn’t as good for the environment as recycling those plastics into plastic bottles. Even if that’s the case, the court noted that the comparison wasn’t relevant in determining whether H&M’s claims were misleading. 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.”

The court noted that H&M provided copious amounts of information” about its comparisons on its website (which Lizama admittedly reviewed). H&M disclosed on its website all of the information Lizama needed to determine the source, composition, and relevant comparison of the more sustainable materials’ used by H&M in its Conscious Choice collection. For this reason, Lizama’s claims that he was misled into believing something that was never represented by H&M must fail.”

The court also rejected Lizama’s contention that H&M’s claims are unqualified general environmental benefit claims” as defined by the FTC’s Green Guides. Indeed, the court said the sustainability claims were clearly qualified by explaining that its conscious choice items are made with a little extra consideration for the planet’ because they use more sustainable materials’ than its regular collection.” The court also dismissed Lizama’s argument that the messaging overstated the environmental benefit since the products in the conscious choice category included only those with the majority of their materials being more sustainable’ than the regular collection.

There’s a lot more going on in this case, and the decision may be worth a read for retailers making similar claims, but there is at least one important takeaway in this case. Plaintiffs will continue to file lawsuits when their ideas about what is sustainable” or good for the environment differs from a company’s ideas about those concepts. Companies will fare better in those lawsuits if they are able to provide detailed and accurate information to explain their claims and have substantiation that the touted attributes actually result in an overall benefit for the environment.

For more information on these topics and the increase in legal risks associated with ESG messaging, please join our Hot Topics in Green Marketing webinar on May 31, 2023.