Gonzalo E. Mon
Kelley Drye & Warren LLP
Sustainability continues to be a hot topic in the fashion industry, both in ads and in lawsuits related to those ads. Last month, a plaintiff filed a proposed class action against H&M arguing that the company makes various false claims about the sustainability of its products. The lawsuit seems to be prompted by a June 28, 2022 article published in Quartz with the results of an investigation which allegedly demonstrated that “H&M showed customers environmental scorecards for its clothing that were misleading and, in many cases, outright deceptive.”
Leaning on the Quartz article, the complaint alleges that the company “conveniently and egregiously” presented negative results as positive ones in its scorecards. For example, one scorecard claimed that a dress “was made with 20% less water on average,” when Quartz determined that the dress “was actually made with 20% more water.” The plaintiff claims that “a majority” of the products that H&M markets as being sustainably-made are actually “no more sustainable than items in [its] main collection, which are also not sustainable.”
(H&M removed the scorecards, which were based on the Higg MSI calculations, shortly after Quartz published the article. Facing scrutiny over its use of Higg MSI, the Sustainable Apparel Coalition also announced that it was pausing the use of the tool, pending further investigation. Critics who think that Higg MSI doesn’t measure enough of a product’s lifecycle are happy with that decision, but members of the Coalition and others who rely on Higg MSI are left to wonder what’s next.)
The plaintiff looks beyond the article and cites a number of other claims that allegedly mislead consumers, including claims that products are a “conscious choice,” a “shortcut to sustainable choices,” and made from “sustainable materials.” Moreover, the plaintiff alleges that statements that H&M will prevent its clothes “from going to landfill” through its recycling program are also misleading because recycling options are not commercially available on a large enough scale. According to the complaint, “it would take H&M more than a decade to recycle what it sells in a matter of days.”
The complaint covers a lot of ground, and it’s too early to predict how the case will turn out. Nevertheless, the case serves as another reminder that green claims continue to face scrutiny from a number of sources, including competitors, regulators, plaintiffs’ attorneys, and the press. Negative attention from one source can lead to negative attention from others. It’s important for companies to ensure that their claims are backed by solid evidence and that the language they use is closely tailored to that evidence.
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Originally Published At The Mondaq Platform