H&M is being sued "Misleading" Sustainability Marketing – The Fashion Law | Region & Cash

H&M “captures consumer interest” in sustainability and products that “do not harm the environment,” according to a new false advertising lawsuit. According to the proposed class action lawsuit, which she filed in federal court in New York on July 22, plaintiff Chelsea Commodore alleges that she is trying to appeal to the growing segment of environmentally conscious consumers who are willing to pay more for “sustainably made” products . Clothing and accessories, the Swedish fast fashion giant has incorporated “environmental scorecards” for its products called “Sustainability Profiles” into the labeling, packaging and marketing materials for hundreds of its offerings – only to eventually remove them after being asked about the use of ” falsified information that did not match the underlying data”.

In the newly filed complaint, Commodore alleges that “despite its position as a fast fashion giant, H&M has developed an extensive marketing program to ‘greenwash’ its products” to “present them as eco-friendly when they aren’t. Part of that overarching effort comes in the form of its “misleading” environmental scorecards prominently displayed on “green hang tags, in-store signage and online marketing.” A sustainability profile marketed by H&M, for example, “claimed that a dress was made with 20% less Water on average,” when an independent investigation by Quartz news agency revealed that the dress was “actually made with 20% more Water.” Another example showed H&M “presenting a particular product as being made with 30% less water,” when the Higg website, from which H&M obtained such information, “showed that the item was “actually made with 31% more water made, which made it even worse than conventional materials,'” claims Commodore.

By presenting negative outcomes as “comfortable and outrageous” as positive, such as B. turning “more water” into “less water”. [on its] Scorecards,” accuses Commodore H&M of being “false[ying]’ its sustainability profiles with ‘inaccurate and misleading data’ and ‘misrepresentation[ing] its products as better for the environment than comparable garments, when they are not.” And to make matters worse, Commodore claims that H&M has done so “for every single sustainability profile scorecard”.

Against this background, Commodore claims that “a large proportion” of the products that H&M markets as sustainably manufactured are “not more sustainable than items in [its] core collections, which are also unsustainable” – at the expense of consumers, “who pay a premium because they think they are buying truly sustainable and eco-friendly clothing.” (To play devil’s advocate for a moment here: sensible consumers should probably know that H&M’s $25 “conscious” cardigans and $40 “sustainable” dresses are not “truly sustainable”. or “environmentally friendly.”)

In addition to its allegedly problematic sustainability profiles, Commodore claims that “H&M makes various other misrepresentations regarding the supposedly sustainable nature of its products”, including that its products are “conscious”, a “conscious choice”, a “shortcut to sustainable choices” are ‘made from ‘sustainable materials’, ‘close the loop’ and that H&M will prevent its textiles from ‘ending up in landfill’ through its recycling program.” (H&M will almost certainly push back here, especially when it comes to use of terms like “aware,” which it will no doubt argue is a subjective, unspecific, unmeasurable, and vague statement, and therefore unworkable.)

Additionally, according to Commodore, H&M makes further misrepresentations about the nature of the products in its Conscious Collection, including the fact that they contain “at least 50% sustainable materials such as organic cotton and recycled polyester” when in reality the products “are undeniably made of unsustainable materials like polyester” which are “unsustainable because polyester is not biodegradable, emits toxic microfibers and is not recyclable”. These products “contain a higher percentage of synthetics than the main collection,” Commodore claims, but H&M “gives consumers the impression that the materials used in its products are still environmentally responsible.” And yet H&M’s claims that “made of old clothes simply being made into new clothes, or that clothes don’t end up in landfill” — thanks to its recycling initiative — “misleading,” according to the complaint. “Recycling solutions either don’t exist or aren’t widely available commercially for the vast majority of products,” claims Commodore, and yet she argues that “it would take H&M more than a decade to recycle what it has in a matter.” sold in days.”

In view of the foregoing, Commodore alleges that H&M engages in fraudulent acts or practices and false advertising in violation of New York General Business Law through its alleged “misrepresentation”.[ation of] the sustainability and properties of the products to encourage consumers to buy H&M products’, and given that ‘a consumer acting reasonably under the circumstances would reasonably believe these claims, particularly given that H&M is a nationally recognized and established company.” (Commodore goes on to claim that H&M is “trying to differentiate itself from other fashion products by greenwashing the products and its brand,” which “is a fraudulent act and an unfair practice because [H&M]one of the biggest polluters in the fashion world, knows that the products are unsustainable and contribute to significant negative environmental damage throughout the product lifecycle, from cultivation to incineration.” unfair actions.

In addition to seeking injunctive relief and monetary damages, Commodore wants the court to uphold its proposed class action lawsuit to allow other consumers who have purchased H&M products that contained “a sustainability profile or misrepresentation of sustainability” to join the lawsuit .

The case comes amid a boom in sustainability-focused efforts by brands looking to appeal to environmentally conscious consumers, complete with a rise in misleading “sustainable” marketing — from consumer-focused ads (complete with sustainability-inspired logos) to language in investor filings. To date, brands have largely avoided litigation and regulatory action in response to potentially misleading sustainability and broader ESG claims, but that could change.

Commodore’s lawsuit closely follows an early victory for a proposed class-action plaintiff that filed suit against ALDI, with an Illinois federal court refusing to dismiss the case accusing the supermarket chain of allegedly engaging in a “false and fraudulent marketing” scheme to have involved” its salmon as sustainably sourced, even though such products come from farms that employ “environmentally destructive and unsustainable practices.” In a May order, the court found plaintiff Jessica Rawson guilty of false advertising, violation of state consumer protection laws, and breach of express warranty claims, which essentially relate to the use of a “Simple. Consistent. Seafood.” label, while the supermarket chain failed to convince the court with arguments in its defense, including that the label constitutes an unenforceable arrogance and that Rawson did not allege apparent infringement.

The ALDI case and a growing body of lawsuits (including this one) and increasing attention from regulators around the world to ESG and climate-related disclosures/marketing increase the risk for companies that advertise products and services as “sustainable” without acknowledging it be able to substantiate such claims. As a result, Gowling WLG’s Kate Hawkins, Shannon Uhera and Céline Bey state that trademarks would be well suited to avoiding representations (regardless of medium) that are unsupported and verifiable, noting that “claims must be based on solid evidence”. In addition, companies are encouraged not to hide information about the environmental impact of a product or service, or to only single out the positive environmental aspects and/or exaggerate the environmental benefits of their efforts.

And in perhaps the greatest departure from past practice, where many sustainability-focused marketing efforts have included vague and/or overly ambitious claims that sidestep false advertising claims, Hawkins, Uhera and Bey say companies need to be cautious about making “claims about [their] environmental ambitions, unless claims are proportionate to actual efforts; there is a clear, documented and verifiable plan (which is detailed and realistic) for how the company will achieve those goals; and the company monitors progress against that plan.” They also warn that companies are “vague or ambiguous in their claims about the environmental benefits of a product or service.”

A H&M representative was not immediately available for comment.

The case is Commodore v H&M HENNES & MAURITZ LP, 7:22-cv-06247 (SDNY).

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