Last year, we blogged about a case brought against Coca-Cola by nonprofit environmental group Earth Island Institute, alleging that Coca-Cola falsely and deceptively represented itself as "a sustainable and environmentally friendly company, despite being one of the largest contributors of plastic pollution in the world." Notably, many of the claims challenged involved forward-looking statements about Coca-Cola's sustainability and environmental initiatives and goals it hoped to achieve in the future.
This week, D.C. Superior Court judge Maurice A. Ross dismissed the lawsuit for three reasons:
(1) Coca-Cola's statements were "aspirational in nature."
The court found that many of the challenged statements merely amounted to "general, aspiration corporate ethos" that did not include any "promises or measurable data points" that would render them true or false. Those statements included claims like:
- "Our planet matters. We act in ways to create a more sustainable and better shared future. To make a difference in people’s lives, communities and our planet by doing business the right way."
- "Scaling sustainability solutions and partnering with others is a focus of ours"
- "Business and sustainability are not separate stories for The Coca-Cola Company–but different facets of the same story."
- Because our company is in so many communities globally, we can share our best practices. We can collaborate with governments, communities, the private sector, and NGOs to help develop more effective recycling systems that meet each community’s unique needs.”
- “We’re using our leadership to achieve positive change in the world and build amore sustainable future for our communities and our planet..."
- “[C]omitted to creating a World Without Waste by taking responsibility for the
packaging we introduce to markets and working to reduce ocean pollution.”
But, the court also looked at certain statements that, while aspirational, did include specific measurements, such as claims that:
- "Part of our sustainability plan is to help collect and recycle a bottle or can for every one we sell globally by 2030."
- “Make 100% of our packaging recyclable globally by 2025. [And] [u]se at
least 50% recycled material in our packaging by 2030.”
However, interestingly, the court found that those claims, despite including specific measurements, were also not actionable because they "also include[d] the caveat that the goals are set significantly in the future."
(2) Coca-Cola's statements were not "tied to a product or service." Most of the statements challenged appeared on sources like Coca-Cola's website, Twitter, and Coca-Cola's corporate communications and ultimately, the court found that "including corporate ethos, hopes, and philosophies represented by statements on various corporate communications but not on the product label cannot be considered as part of the product itself" as required by the applicable D.C. statute.
(3) Coca-Cola's statements were not "sufficient to create a misleading 'general impression' or a 'mosaic of representations' to a reasonable D.C. consumer as a matter of law." The court found that the complaint "cherrypicked" statements from various publication sources, and that D.C.'s applicable consumer protection statute provides a cause of action for "a misleading 'material fact,' not a bungle of different statements taken from various documents at different times."
In dismissing the suit the court posed the question, "how does Earth Island Institute or a reasonable juror decide that Coca-Cola's future goals cannot be met?" and noted that "courts cannot be expected to determine whether a company is actually committed to creating a 'world without waste' or to 'doing business the right way.'"
What does this mean for advertisers? Well, at least in D.C. Superior Court, environmental aspirational claims -- even those tied to specific measurement attributes -- do not necessarily appear sufficient to state a claim under D.C.'s consumer protection statute.
But, context is key, and advertisers should also be mindful that claims may be looked at differently in different forums. For example, this case may very well have come out differently if it had been before the National Advertising Division. On aspirational environmental claims, NAD has stated that "even if the advertisement's message of sustainability is merely aspirational, the advertising claim is nevertheless one that requires substantiation. It is incumbent on an advertiser to demonstrate that its goals and aspirations are not merely illusory and to provide evidence of its commitments."
"courts cannot be expected to determine whether a company is actually committed to creating a 'world without waste' or to 'doing business the right way'"