The packaging of ‘Atlantic salmon’ sold in the ALDI supermarket chain promotes the product as ‘sustainable’. A consumer has sued for false advertising, alleging that ALDI “sources its salmon from large industrial fish farms that use environmentally destructive and unsustainable practices.” Is there anything fishy about ALDI’s ‘sustainable’ claim? What does it mean when an advertiser promotes their product as “sustainable”?
The Federal Trade Commission’s Guides for Using Environmental Marketing Claims, which were updated in 2012, do not provide guidance on the use of the term “sustainable.” When releasing the Green Guides at the time, the FTC said it did not have enough evidence about the meaning of the claim to provide guidance on how to use it. The Green Guides advise against making general claims about environmental benefits, however, as they are “difficult to interpret and likely convey a wide range of meanings.”
In the International Chamber of Commerce’s recent review of its own framework for responsible environmental marketing communications, published late last year, the ICC treats a “sustainable” claim as a type of general benefit claim. environmental benefits which should be nuanced, so that it is clear what specific environmental benefit is being advertised. The ICC states that “an unqualified ‘sustainability’ claim may be understood to involve company actions beyond efforts to reduce environmental impacts. Claims may state or imply that the claim involves social and economic impacts, such as support for fair working conditions, diversity and inclusion, communities or charities, etc. Marketers who make general sustainability claims in advertising should be aware that consumers can take away a broader message of corporate social responsibility and must substantiate all explicit and implicit messages and qualify statements accordingly.
Here, the plaintiff sued under New York law, alleging violations of General Business Law Sections 349 and 350, which prohibit deceptive acts or practices and false advertising. Ultimately, under either section, a plaintiff must provide that there was a claim that was “substantially misleading”. So, has the plaintiff plausibly alleged that it is materially misleading to claim that salmon is “sustainable”?
ALDI argued that the use of “sustainable” was not misleading as the claim should be read in conjunction with the “Best Aquaculture Practices” certification which also appears on the packaging. BAP certification means that the salmon was purchased in accordance with best practices endorsed by the Global Seafood Alliance. At least for the purposes of the motion to dismiss, the court did not believe that the BAP certification made the plaintiff’s claims implausible. The court noted that not only was the certification not next to the “sustainable” claim, but reasonable consumers might not even know what the certification means or how it relates to the sustainability claim.
ALDI also argued that the use of “durable” was non-prosecutable buffoonery. The court defined buffoonery as “exaggeration or exaggeration expressed in broad, vague and laudatory language”. In other words, it is a subjective statement that “cannot be proven either true or false”. Although the court recognized that “boastful claims or exaggerated descriptions often constitute buffoonery”, it found here that ALDI’s use of “sustainable” goes beyond that. The court explained: “It attempts to tie its product to at least some environmental benefit. Accordingly, it can reasonably be inferred that ALDI’s label suggests, at a minimum, that its product is manufactured in such a way as to minimize environmental impact. negative. to the environment, which can be actionable as something beyond buffoonery.” In support of its conclusion, the court referred to the Green Guides which, as noted above, advise against the use of unqualified general environmental benefit claims.
While there may not be a lot of specific advice out there right now on how to make “sustainability” claims, here are some key things to keep in mind.
Chances are that a court or regulator will consider a “sustainability” claim to be communicating a general claim about the environmental benefits provided by the product. So don’t just assume that the claim is inflated and no substantiation is required.
In order to avoid claims that you are exaggerating the green attributes of the product, it is best to be specific about the benefits provided. Ideally, you would simply explain the benefit and avoid the general claim of environmental benefit altogether. But, if you claim a product is “sustainable”, it is best to qualify the claim with a clear explanation of why it is sustainable – for example, “our packaging is sustainable because it is made from 100 % recycled content.” And, for this qualification to be effective, it must be close to the modified claim.
Finally, even if there are more “sustainable” aspects of the product, consider whether overall it is fair to promote the product as providing an environmental benefit. If the product has a significant negative environmental impact, or if the benefit you are promoting is relatively small compared to the overall harm caused by the product, you may want to avoid general statements about the actual “sustainability” of the product.
Rawson vs. ALDI2022 WL 1556395 (ND Ill. 2022).
This alert provides general coverage of its domain. We provide it with the understanding that Frankfurt Kurnit Klein & Selz does not here undertake to provide legal advice and will not be liable for damages resulting from any error, inaccuracy or omission. Our attorneys practice law only in jurisdictions where they are duly licensed to do so. We do not seek to represent clients in other jurisdictions.