As plaintiffs continue to rely on the District of Columbia Consumer Protection Procedures Act (“CPPA”) to bring greenwashing suits, a recent D.C. Superior Court decision imposes limits on their ability to allege that a company’s general commitments to “sustainability” can constitute actionable misrepresentations.

In Earth Island Institute v. The Coca-Cola Company, No. 2021 CA 001846 B (Nov. 10, 2022), plaintiff alleged that the Coca-Cola Company’s statements on various platforms deceptively represented the company as sustainable and environmentally friendly.  Specifically, plaintiff claimed that several statements on the company’s website and Twitter regarding its corporate sustainability initiatives were misleading because the company’s business practices allegedly fell short of what consumers would expect from a “sustainable company.”  The court dismissed the complaint in full, holding that plaintiff had failed to identify any actionable misrepresentation of material fact.

  1. General aspirational statements did not violate the CPPA.  The court first held that the majority of statements identified by the plaintiff were “aspirational sentiments, such as future goals or vague corporate ethos” that may “point to a general theme of sustainability and corporate improvement,” but are not “promises or measurable datapoints that would render the [] statements true or false.”  This included phrases such as “a more sustainable and better shared future,” “a focus of ours,” “a more sustainable future for our communities and our planet,” “help develop more effective recycling systems,” and “committed to creating.”  While the complaint referenced a few more specific forward-looking statements—including the company’s plans “to help collect and recycle a bottle or can for every one we sell globally by 2030” or to “[m]ake 100% of our packaging recyclable globally by 2025”—the court concluded that these, too, were merely future goals that could not, at least at present, be measured or determined to be false or misleading.
  1. Statements not tied to a “product or service” were not actionable under specific sections of the CPPA.  The court further held that sections (a), (d), and (h) of the CPPA, D.C. Code § 28-3904(a), (d), (h), explicitly require that the alleged deception involve specific “goods or services,” which Coca Cola’s statements did not.  The court rejected plaintiff’s argument that these general sustainability statements were “designed to effectuate a sale of the product,” and held that the communications, which did not appear on the product itself, were not actionable under these sections of the CPPA.
  1. Aspirational statements did not create a misleading “general impression” or “mosaic of representations” that is actionable under the CPPA.  In addition to the provisions cited above, plaintiff also attempted to establish violations of sections (e), (f), and (f-1) of the CPPA, D.C. Code § 28-3904(e), (f), (f-1), which prohibit misrepresentations as to a material fact, failures to state a material fact, or innuendos or ambiguities as to a material fact, if they have a tendency to mislead.  Plaintiff argued that Coca Cola’s statements, taken together as a “general impression” or a “mosaic of representations,” could mislead a reasonable consumer as to Coca Cola’s sustainability.  The court rejected that argument, explaining that the CPPA prohibits misrepresentations as to a material fact, “not a bungle of different statements taken from various documents at different times.”  While plaintiff’s complaint took issue with Coca Cola’s marketing strategy and the way it had branded itself, “[n]othing in the CPPA prohibits an entity from cultivating an image.”  Ultimately, the court said, there is “no plausible framework to determine whether a reasonable DC consumer could be misled by a general impression,” and the statements at issue were so “aspirational, limited, and vague” that, as a matter of law, they could not be misleading.
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Photo of Alyssa McGraw Alyssa McGraw

Alyssa Vallar is an associate in the firm’s Washington, DC office and a member of the Litigation and Investigations Practice Group. Prior to joining the firm, Alyssa clerked for the Hon. Gerald Bard Tjoflat on the U.S. Court of Appeals for the Eleventh…

Alyssa Vallar is an associate in the firm’s Washington, DC office and a member of the Litigation and Investigations Practice Group. Prior to joining the firm, Alyssa clerked for the Hon. Gerald Bard Tjoflat on the U.S. Court of Appeals for the Eleventh Circuit.

Photo of Andrew Soukup Andrew Soukup

Andrew Soukup has a wide-ranging complex litigation practice representing highly regulated businesses in class actions and other high-stakes disputes. He has built a successful record of defending clients from consumer protection claims asserted in class-action lawsuits and other multistate proceedings, many of which…

Andrew Soukup has a wide-ranging complex litigation practice representing highly regulated businesses in class actions and other high-stakes disputes. He has built a successful record of defending clients from consumer protection claims asserted in class-action lawsuits and other multistate proceedings, many of which were defeated through dispositive pre-trial motions.
Andrew is co-chair of the firm’s Class Action Litigation practice group.

Andrew has helped his clients achieve successful outcomes at all stages of litigation, including through trial and appeal. He has helped his clients prevail in litigation against putative class representatives, government agencies, and commercial entities. Representative victories include:

  • Delivered wins in multiple nationwide class actions on behalf of large financial companies related to fees, disclosures, and other banking practices, including the successful defense of numerous lenders accused of violating the Paycheck Protection Program’s implementing laws, which contributed to Covington’s recent recognition as a “Class Action Group Of The Year.”
  • Successfully defending several of the nation’s leading financial institutions in a wide variety of litigation and arbitration proceedings involving alleged violations of RICO, FCRA, TILA, TCPA, FCBA, ECOA, EFTA, FACTA, and state consumer protection and unfair and deceptive acts or practices statutes, as well as claims involving breach of contract, fraud, unjust enrichment, and other torts.
  • Successfully defended several of the nation’s leading companies and brands from claims that they deceptively marketed their products, including claims brought under state consumer protection and unfair deceptive acts or practices statutes.
  • Obtained favorable outcomes for numerous clients in commercial disputes raising contract, fraud, and other business tort claims.

Because many of Andrew’s clients are subject to extensive federal regulation and oversight, Andrew has significant experience successfully invoking federal preemption to defeat litigation.

Andrew also advises clients on their arbitration agreements. He has successfully helped numerous clients avoid multi-district class-action litigation by successfully enforcing the institutions’ arbitration agreements.

Clients praise Andrew for his personal attention to their matters, his responsiveness, and his creative strategies. Based on his “big wins in his class action practice,” Law360 named Mr. Soukup a “Class Action Rising Star.

Prior to practicing law, Andrew worked as a journalist.

Photo of Ashley Simonsen Ashley Simonsen

Ashley Simonsen is a litigator whose practice focuses on defending complex class actions in state and federal courts across the country, with substantive experience in the three hotbeds of class action litigation: New York, San Francisco, and Los Angeles.

Ashley represents clients in…

Ashley Simonsen is a litigator whose practice focuses on defending complex class actions in state and federal courts across the country, with substantive experience in the three hotbeds of class action litigation: New York, San Francisco, and Los Angeles.

Ashley represents clients in the technology, consumer brands, financial services, and sports industries through all stages of litigation, including trial, with a strong track record of success on early dispositive motions. Her practice encompasses advertising, antitrust, product defect, and consumer protection matters. Ashley regularly advises companies on arbitration clauses in consumer agreements and related issues, including mass arbitration risks and issues arising under McGill v. Citibank, N.A. And she is one of the nation’s leading experts on “true lender” issues and the related “valid when made” doctrine.