As companies have increased efforts to represent their products as environmentally friendly, “greenwashing” lawsuits—which target companies (often under consumer protection statutes) based on allegations of false or misleading statements regarding the environmental impact of their products or practices—have also increased. A recent order from the district court in the Northern District of California illustrates the difficulty in attempting to defeat these claims before trial if a strong evidentiary record has not been developed.

In Bush v. Rust-Oleum Corporation, plaintiff and the putative class challenged the defendant’s labeling of its “Krud Kutter” cleaning products as “non-toxic” and “Earth friendly,” asserting that the products caused harm to humans, animals, and the environment.  Defendant previously moved to dismiss the plaintiff’s claims, arguing that a reasonable consumer would interpret “non-toxic” as “not poisonous,” and not that it meant the product posed no risk to humans, animals, or the environment. That motion was denied.  See Bush v. Rust-Oleum Corp., 2021 WL 24842 (N.D. Cal. Jan. 4, 2021). 

After discovery, the defendant moved for summary judgment, and again argued that plaintiff’s proposed definition of “non-toxic” was unreasonable because both plaintiff and his expert admitted that “risk [of harm] can never be completely eliminated.”  Bush v. Rust-Oleum Corp., 2024 WL 308263, at *2 (N.D. Cal. Jan. 26, 2024).  But the court again denied defendant’s motion, holding that factual disputes prevented the court from finding “as a matter of law that the plaintiff’s asserted definitions . . . are unreasonable.”  Id. at *2–3.  Those disputes included whether the defendant’s labels adequately defined the challenged “non-toxic” and “Earth friendly” claims, and whether consumers actually read those definitions on the labels, especially given that defendant’s own surveys suggested that most consumers do not.  Id. at *3.  Finally, the court also rejected defendant’s argument that the term “Earth friendly” was “mere puffery,” finding that “Earth friendly” was “not so general or nonspecific as to make it extremely likely that a consumer would rely on it.”  Id.

Ultimately, the court held the jury should decide whether plaintiff’s “asserted definitions are reasonable” under the “reasonable consumer test.”  Id.  The court’s decision is a reminder that these claims, which represent a growing trend in litigation, can be difficult to defeat before trial.