Recent Cases on “Green” Messaging in Food and Beverage Company Advertising
Top Food and Drug Cases, 2022, & Cases to Watch, 2023: Food and Drug Law Institute
For the 2023 edition of Top Food and Drug Cases, a publication of the Food and Drug Law Institute (FDLI), Analysis Group Managing Principal Rebecca Kirk Fair, Principal Rene Befurt, Vice President Anne Cai, and Senior Analyst Helene Rowland explored several class action litigations in which the plaintiffs questioned the “green” messaging of food and beverage companies. In Earth Island Institute v. The Coca-Cola Company, Coca-Cola was alleged to have used sustainability and anti-pollution language in its advertisements to encourage climate-concerned consumers to purchase its products. Additionally, plaintiffs in Duchimaza v. Niagara Bottling asserted that a “100% Recyclable” claim on a plastic water bottle was misleading. Finally, in White v. Kroger, the plaintiffs claimed that “reef friendly” on sunscreen products could be misunderstood.
In discussing the potential relevance of these cases on future litigation, the authors described contextual information that may be helpful in presenting evaluations of consumer perception and behavior to finders of fact. The factors discussed included consumers’ prior knowledge of environmental, social, and governance (ESG) messaging; consumers’ perceptions and behaviors in relation to specific product categories; consumers’ prior associations with a particular company, brand, or product category; and claims implied by a company’s advertisements. The authors concluded by noting that “Various methods can be used to assess consumer understanding and behavior tailored to the context of each case, including methods of empirical evidence such as conducting rigorous survey research of relevant consumers.”
Authors
Befurt R, Cai A, Kirk Fair R, Rowland H