The packaging for "Atlantic Salmon" sold at the ALDI supermarket chain promotes the product as "sustainable." A consumer sued for false advertising, alleging that ALDI "sources its salmon from large industrial fish farms that use environmentally destructive and unsustainable practices." Is there something fishy about ALDI's "sustainable" claim? What does it mean when an advertiser promotes its product as "sustainable"?
The Federal Trade Commission's Guides for the Use of Environmental Marketing Claims, which were updated back in 2012, don't provide any guidance on the use of the term "sustainable." When issuing the Green Guides back then, the FTC said that it didn't have sufficient evidence about the meaning of the claim to provide guidance about how to use it. The Green Guides do advise, however, against making general environmental benefit claims, since they are "difficult to interpret and likely convey a wide range of meanings."
In the International Chamber of Commerce's recent revision to its own Framework for Responsible Environmental Marketing Communications, issued late last year, the ICC treats a "sustainable" claim as a type of general environmental benefit claim that should be qualified, so that that it's clear what specific environmental benefit is being advertised. The ICC advises 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, or the like, as well. Marketers making general sustainability claims in advertising should be mindful that consumers may take away a broader corporate social responsibility message and must substantiate all express and implied message and qualify claims accordingly."
Here, the plaintiff sued under New York law, alleging violations of Sections 349 and 350 of the General Business Law, which prohibit deceptive acts or practices and false advertising. Ultimately, under either section, a plaintiff must provide that there was a claim that was "materially misleading." So, did the plaintiff plausibly allege that it was materially misleading to claim that the salmon is "sustainable"?
ALDI argued that the use of "sustainable" was not misleading because the claim should be read in conjunction with the "Best Aquaculture Practices" certification that also appears on the packaging. The BAP certification signifies that the salmon was sourced in accordance best practices approved by the Global Seafood Alliance. At least for purposes of the motion to dismiss, the court didn't think that the BAP certification make 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 "sustainable" was non-actionable puffery. The court defined puffery as, "an exaggeration or overstatement expressed in broad, vague, and commendatory language." In other words, it's a subjective statement that "cannot be proven either true or false." While the court acknowledged that "boastful assertions or exaggerated descriptions often constitute puffery," it held here that ALDI's use of "sustainable" goes beyond that. The court explained, "It attempts to connect its product to at least some environmental benefit. As a result, a reasonable inference can be made that ALDI's label suggests, at a minimum, that its product is made in such a way that minimizes negative impact to the environment, which can be actionable as something beyond puffery." In support of its conclusion, the court pointed to the Green Guides, which as discussed above, advises against the use of unqualified general environmental benefit claims.
While there may not be a lot of specific guidance out there right now about how to make "sustainability" claims, here a few key things to keep in mind.
There's a good chance that a court or a regulator will see a "sustainability" claim as communicating a general claim about the environmental benefits provided by the product. So, don't just assume that the statement is puffery and that no substantiation is required.
In order to help avoid claims that you're overstating the environmentally beneficial attributes of the product, it's best to be specific about what benefits are being provided. Ideally, you'd just explain the benefit, and avoid the general environmental benefit claim altogether. But, if you're going to claim that a product is "sustainable," it's best to qualify the statement with a clear explanation of why it is sustainable -- for example, "our packaging is sustainable because it's made of 100% recycled content." And, for that qualification to be effective, it should be in close proximity to the claim being modified.
Finally, even if there are some more "sustainable" aspects of the product, consider whether, overall, it's fair to promote the product as providing an environmental benefit. If the product is causing significant negative environmental impact, or if the benefit you're promoting is relatively small in relation to the overall harm the product is causing, you may want to avoid broad statements about just how "sustainable" the product really is.
Rawson v. ALDI, 2022 WL 1556395 (N.D. Ill. 2022).
"a reasonable inference can be made that ALDI's label suggests, at a minimum, that its product is made in such a way that minimizes negative impact to the environment, which an be actionable as something beyond puffery"