June 2, 2023 - On May 12, a federal judge in the Eastern District of Missouri dismissed a proposed class action lawsuit against H&M for its "Conscious Choice" line of products based, in part, on a finding that plaintiff's allegations that H&M's "sustainable" marketing violated California and Missouri consumer protection laws, as well as the FTC's Guides for the Use of Environmental Marketing Claims, known as Green Guides, were not supported (Abraham Lizama, et al., v. H&M Hennes & Mauritz LP, 4:22-cv-01170 (E.D. Mo.)).

While headlines touting H&M's victory may embolden marketers to leverage sustainability messaging, they should still maintain caution and closely adhere to all available Federal Trade Commission (FTC) guidance on these claims.

The suit alleged that H&M's marketing for its "Conscious" collection deceives consumers into believing that the products are sustainable and environmentally friendly. Instead of calling products "environmentally friendly," H&M leaned heavily on words such as "conscious" and "sustainable."

For example, "sustainable" was used in the following statements on the retailer's website:

•"The shortcut to more sustainable shopping."

•"You can identify our most environmentally sustainable products by looking out for our green Conscious hangtags."

•"[P]ieces created with a little extra consideration for the planet. Each Conscious choice product contains at least 50% or more sustainable materials — like organic or recycled polyester — but many contain a lot more than that. The only exception is recycled cotton, where we accept a level of at least 20%."

•"With new technological solutions and innovations, we're continually working to make our range even more sustainable."

The FTC did, however, caution marketers against using vague "General Environmental Benefit Claims" like "eco-friendly," "greener," and "environmentally friendly" as these claims on their own can be difficult to make in a not misleading and fully substantiated manner.

On a broader level, regulators worldwide have been increasingly concerned with the reality of how products are ultimately disposed (e.g., in landfills), the difficulties in accurately calculating environmental benefits of a particular product and/or its manufacturing or packaging method, and the ability of marketers to concisely convey that information without misleading consumers.

In dismissing the complaint, U.S. District Court Judge Rodney W. Sippel found that H&M's "sustainable" claims were appropriately qualified with statements that "[e]ach Conscious Choice product contains at least 50% more sustainable materials — like organic cotton or recycled polyester." The Court found those content claims accurate and "that the use of those materials is more environmentally beneficial than the use of virgin or non-organic counterparts."

These benefits were not negligible in the Court's eyes because a majority of the materials were "more sustainable" and the retailer explained the differences between materials and the environmental impacts of each. Because this evidence was "uncontested," the Court did not scrutinize the validity of the environmental impact statements and the integrity of the underlying calculations that led to those statements.

This decision adds to a growing body of case law supporting the proposition that "sustainable" claims are qualifiable and supportable in some contexts, which may provide some comfort to countless brands that tout their sustainability bona fides. But wise marketers should take note: The FTC's position is that vague General Environmental Benefit Claims are best avoided unless stringent criteria are met — including carefully understanding the trade-offs that can occur with certain manufacturing decisions.

Thus, while the Court here focused on the literal truth of H&M's claims on their face, the FTC is likely to take a more holistic view when evaluating green claims. The H&M decision will likely further fuel the agency to cement its policy on "sustainable" within the forthcoming update to the Green Guides, which should provide brands and courts more guidance on how to approach these claims in the future. The National Advertising Division, the self-regulatory body that hears challenges regarding national advertising materials, is likely to continue to align itself with the FTC and its interpretation of claims.

Moreover, H&M faces another lawsuit over its sustainability marketing, and similar previous cases have offered a mixed bag of results. While further guidance from the FTC may help harmonize outcomes across consumer, competitor, and regulatory enforcement actions, brands waiting for clarity should still err on the side of caution by focusing on transparency, carefully vetting their substantiation, and not overstating the environmental benefits of their products.

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