As fast fashion brands develop new lines of clothing using more sustainable methods or with more allegedly sustainable methods of production, advertising campaigns that appeal to environmentally conscious audiences make claims that need substantiation. Were the claims made by H&M for its Conscious Choice clothing line leaving consumers out to dry?
Case Facts
H&M is a fast fashion brand that released a collection called “Conscious Choice.” The marketing tagline used to describe the brand’s mission says that garments are “created with a little extra consideration for the planet,” which generally includes making clothing “at least 50% of more sustainable materials.” Plaintiff Abraham Lizama, who purchased a sweater from the Conscious Choice collection in California, claimed that consumers were misled by the environmental claims and filed a class action lawsuit accusing the brand of greenwashing. The plaintiff alleged that the collection actually contained a higher percentage of synthetics, including recycled polyester, than H&M’s regular collection, in effect making them worse for the environment.
In the complaint, which alleged false and deceptive advertising, as well as unfair practices under the FTC’s Green Guides, the plaintiff pointed to H&M marketing language relating to sustainability and environmental awareness. However, the judge found that the H&M marketing materials did not make express claims that the company’s clothes or manufacture are environmentally friendly; rather, the company claimed that the materials were “more sustainable.”
‘More Sustainable’ is Not ‘Environmentally Friendly’
In the decision handed down by Judge Sippel, the court noted that the plaintiff relied on the words “environmentally friendly” in the complaint. The opinion maintained that “no reasonable consumer would understand [H&M’s] representations to mean that the Conscious clothing line is inherently ‘sustainable’ or that H&M’s clothing is ‘environmentally friendly’ when neither of those representations were ever made.” Instead, the “only reasonable reading of H&M’s advertisements is that the Conscious collection uses materials that are more sustainable than its regular materials.”
ESG Claims, Futures, and Consumer Survey Use
As more disputes like this one arise from ESG marketing claims, we are seeing more guidance from courts on how to substantiate ESG claims. The FTC is expected to hand down more guidance on sustainability and related terms. When challenges and litigation about consumer perception arise, advertisers can use consumer surveys to determine whether consumers really were misled, or whether the “green” claims are material to their purchasing decisions.
Properly designed surveys are one of the accepted methods of ascertaining consumer sentiment. In this case, because H&M made no express claims that its line was environmentally friendly, but rather claimed that the clothes were made “more sustainably,” the court ruled in its favor. However, when in doubt, it’s always safest for advertisers to substantiate their claims with consumer surveys. MMR Strategy Group offers surveys for advertising claim substantiation as well as marketing research and litigation support. If you’d like to discuss how surveys can help make your case, contact us today.