Biglaw, Fashion

Greenwashing Lawsuits Won't Be Going Out Of Style Any Time Soon In The Fashion & Cosmetics World

Forever chemicals in fashion.

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environmental law grass scales of justiceThe fashion and cosmetics industries are increasingly embroiled in litigation that used to be the province of less glamorous products — cookware, fast-food packaging, and firefighting foam, among other quotidian targets. Such cases concern the use of per- and polyflouroalkyl substances (PFAS). These are the “forever chemicals” we’re reading more about lately. Plaintiffs are using new theories, and even new state laws, to bring suits against fashion and cosmetics companies over the use of forever chemicals.

Consumers are also dodging the steep burden of proving injury from the chemicals themselves by suing, instead, under false advertising theories. These suits allege “greenwashing” — that defendants’ ads and packaging have covered up the presence of forever chemicals in their products, and/or have touted environmental and personal safety properties that plaintiffs urge are false and misleading.

PFAS were originally introduced into commercial products such as non-stick cookware, water-resistant coatings, food packaging, firefighting foams, cosmetics, and textiles for their unique properties which make them highly resistant to heat, water, and oil.

Beginning in the 1990s, the first PFAS-related lawsuits were filed against DuPont, a manufacturer of Teflon, linking PFAS pollution from the company’s plant in Parkersburg, West Virginia, to diseases including cancer. Despite its alleged knowledge of the hazards associated with PFAS and its contamination of the Parkersburg water supply, DuPont purportedly failed to warn the community. After denying any wrongdoing, DuPont ultimately settled about 3,550 personal injury claims arising from PFAS for a total of $671 million.

As studies and regulations on PFAS continue to progress, a wave of lawsuits has emerged targeting companies that sell PFAS-contaminated products, including cosmetics, feminine products, fast food packaging, and clothing, among others. These legal actions highlight the growing concern over PFAS exposure and the responsibility of companies to ensure the safety and transparency of their products.

Many of these lawsuits take the form of class-action claims based on false advertising. False advertising claims can be much easier to prove than product injury claims, although the damages would tend to be lower. Depending on the law alleged and the jurisdiction, such claims typically require a showing that plaintiffs would not have bought products containing PFAS at the prices they paid if they had not been misled about the true nature of these products. In some jurisdictions, however, if the claims are literally false and found to have been made willfully or in bad faith, there can even be a presumption of material deception.

I note that federal unfair competition and false advertising claims under the Lanham Act are not available to consumers. Such false advertising claims are typically brought by a company that engages in truthful advertising against one that does not. For example, in 2006, Vermont Pure sued its competitor, Nestlé, under Section 43(a) of the Lanham Act alleging that Nestlé made false or misleading advertisements about the source and purity of its water. The case ultimately settled.

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Two notable cases, involving Shiseido and CoverGirl, exemplify this trend towards false advertisement claims. In these separate instances, plaintiffs have accused Shiseido of misleadingly promoting its cosmetics as “clean” and “natural,” while CoverGirl has faced allegations of marketing its products as “safe for use” and “sustainable,” despite the presence of PFAS in their ingredients. However, both of these cases ultimately faced dismissal for lack of Article III standing. The Southern District of California, addressing the CoverGirl case, and the Southern District of New York, addressing the Shiseido case, found that the plaintiffs failed to sufficiently allege that they suffered a concrete economic injury arising from their purchase of the contaminated product.

The newest wave of PFAS studies have been asserted by plaintiffs to support that popular active wear brands sell products that tested positive for the presence of PFAS, including yoga pants and sports bras from Lululemon. A study conducted in 2022 by Toxic-Free Future, an organization focused on environmental health research and advocacy, even found that nearly 75% of products labeled as water- or stain-resistant tested positive for the presence of PFAS.

In October 2022, a class-action lawsuit was brought against Recreational Equipment Inc., commonly known as REI, for marketing waterproof clothing as “environmentally friendly” and “sustainable” despite containing toxic PFAS. While continuing its efforts to dismiss the lawsuit, REI announced that it will ban PFAS in all textile products and cookware from its suppliers.

Just last month, the Ecological Alliance filed a lawsuit against Nike and Dick’s Sporting Goods alleging that the defendants failed to warn citizens of California, in violation of Proposition 65, of the presence of PFAS in the defendants’ Jordan duffle bags. Proposition 65, officially known as the Safe Drinking Water and Toxic Enforcement Act of 1986, requires businesses to inform citizens about exposures to 900 listed chemicals, including PFAS.

While no federal regulations have been enacted to protect against PFAS in consumer products, states have been stepping up to the plate. In 2021, state legislatures considered at least 196 bills seeking to ban the use of PFAS on a list of products. Consumer protection-minded states such as New York and California have enacted legislature that prohibits the manufacture, distribution, or sale within the state of any new textile articles containing regulated PFAS by 2025.

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Greenwashing lawsuits encompass more than just litigation involving PFAS. H&M recently faced a class-action lawsuit where the plaintiffs alleged that H&M deceived its customers by advertising these products as a “conscious choice” and “environmentally friendly” but use materials that are not sustainable. In a decision that came out last month, the court held in favor of H&M, reasoning that “no reasonable consumer would understand [H&M’s] representations to mean that the Conscious clothing line is inherently ‘sustainable’ or that H&M’s clothing is ‘environmentally friendly’ when neither of those representations were ever made.” The court explained that the “only reasonable reading of H&M’s advertisements is that the Conscious collection uses materials that are more sustainable than its regular materials.”

The public, and therefore state legislatures, are increasingly focused on health risks associated with PFAS exposure. Regulations are proliferating mandating companies to provide accurate information about the safety and environmental impact of their products. We can expect this to result in more lawsuits against a growing breadth of companies that sell products incorporating “forever chemicals,” and against companies that make false or misleading claims of product and environmental safety. We can predict that “clean” companies will file Lanham Act suits against competitors who overstate their own environmental and safety features. To date, there has not been a bombshell mega-damages award or settlement figure in the fashion or cosmetics industry arising from use or advertising of forever chemicals. Staying alert to the evolving legal landscape can reduce a company’s risk of inadvertently tripping that “forever” grenade.

BE019E9B-6BAD-4806-AC86-25E8632E65B0Nicolette Shamsian joined Above the Law as a fashion law columnist in 2023. Nicolette earned her B.A., summa cum laude, in Political Science and minor in Entrepreneurship from the University of California, Los Angeles and her Juris Doctor from UCLA School of Law. Nicolette is currently an associate in the Litigation group at Irell & Manella. Nicolette’s work at Irell focuses on intellectual property litigation. As Irell’s resident fashion law aficionado, Nicolette enjoys leading discussions to keep attorneys in the firm up to date on noteworthy fashion law cases.

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