Apparel brands have in recent years launched “sustainable” clothing lines, made of “recycled materials” or aimed at “reducing waste”, in an effort to seize on consumers’ appetite for more sustainability. However according to a 2021 greenwashing policy paper by Generation Climate Europe, the majority of green claims (59%) were not in line with the guidance on green claims published by the UK Competition Markets Authority (CMA).

Greenwashing litigation in the fashion industry

Growing interest in sustainable fashion has led to a hot summer for the fashion industry, with some of the biggest fashion retailer brands being subject to greenwashing proceedings and investigations.

In July 2022, the CMA announced the launch of investigations into ASOS, Boohoo and Asda over the companies’ sustainability claims. The investigations are targeted at, amongst others:

• statements and language used by the companies which may be too broad and vague, suggesting that their products are more sustainable than they actually are;
• the criteria used by the companies to decide which products to include in their ”sustainable” collections, which may be less stringent than customers might reasonably expect (for instance, it is alleged that some products claimed to be made of recycled materials may contain as little as 20% recycled fabric); and
• statements made by the companies about fabric accreditation schemes and standards, which it is suggested could also be misleading.

The CMA’s investigations follow the publication of its Green Claims Code in September 2021, which sets out to educate businesses on how to communicate their green initiatives without misleading consumers. The investigations also demonstrate the CMA’s willingness to investigate behaviours that fall short of its Code.

The CMA only carries out investigations if it believes that there is misconduct in an entire industry, leaving cases of individual breaches mostly to the Advertising Standards Authority (ASA). The CMA’s recent actions are accordingly a signal for the entire fashion industry that greenwashing will not be accepted. It can be expected that other sectors including travel, hospitality, and consumer goods will come under the scrutiny of the CMA.

Greenwashing litigation in retail

Recent actions by the ASA also indicate similar trends in the retail and consumer goods industries.

This summer, the ASA found that a Tesco advert, which claimed that its plant-based products had a lower environmental impact than traditional meat, was misleading for a failure to substantiate the claims by a full life cycle analysis. The ASA recognised that it was generally accepted that by switching to a more plant-based diet, consumers could cut their overall environmental impact. However, some plant-based products might contain a combination of ingredients and had complex production processes which could theoretically result in their having a similar or greater negative environmental impact than basic plant ingredients or a meat-based alternative. The decision is an important reminder that for comparative environmental claims to be clear, assessment of full life-cycle impacts is necessary.

This summer, the ASA also banned a Unilever advert for Persil washing liquid for making misleading sustainability claims. The advert claimed that the product was “kinder to the planet” as it removed stains at lower temperature and quicker wash, and its bottle was made of “50% recycled plastic”. The ASA considered that the comparative claim “kinder” was likely to be ambiguous to viewers. In addition, the ad was found to have misled consumers due to the absence of evidence demonstrating that the full life cycle of the product had a lesser environmental impact compared to a previous formulation. Although a case more focused on plastics than climate, the reasoning about Unilever’s environmental claims could be transferrable to net zero climate pledges.

The CMA’s investigations and the ASA decisions indicate growing regulatory appreciation of impacts of consumer buying power on climate and the environment in general. They also point towards a regulatory willingness to scrutinise consumer-facing sustainability marketing across a wide range of consumer goods. Finally, these cases arguably bring wider environmental issues, including plastics pollution, within the scope of greenwashing litigation. Against this backdrop, corporations promoting sustainability credentials of their goods are increasingly seeking legal advice and guidance to mitigate the liability risk which could arise from these campaigns.