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.

2. 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.

3. 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.