Avoiding Greenwashing Litigation with Better Practices

Author: David Leys

Publication date: 10 January 2022

If a fashion company aspires to be sustainable and profitable at the same time, it must avoid greenwashing litigation from consumers and regulatory agencies. Greenwashing happens when a fashion company exaggerates the environmental benefits of its garments[1] by using buzzwords such as “sustainable,” “eco-friendly,” “organic,” and “natural” when it is not practiced.[2] The fashion company must use facts and figures to support its claims to be sustainable.[3] The fashion company cannot mislead the consumers about the sustainability of the clothing textiles. A fast fashion brand can hardly call itself green when its business is based on driving unsustainable consumption.[4] If a fashion company misleads consumers, there is a major risk of litigation. This can be detrimental to its reputation and finances.

In order to avoid greenwashing litigation, a fashion company must adopt sustainable standards. In this context, the fashion company is able to use the word “sustainable” for its clothing textiles. In all circumstances, the fashion company must comply with certain rules. First, the fashion company must not overstate the sustainable qualities of its garments as it would deceive consumers. Second, the fashion company must not omit material information. For instance, a claim that a garment is “free-of” a particular substance can be considered deceptive if it contains a substance that poses similar risks.[5] Third, the fashion company must avoid broad, vague, unqualified, or general claims. Fourth, the fashion company must support its green claims with competent and reliable evidence. For instance, scientific evidence accompanied by tests, analyses, research and studies can qualify as objective evidence.[6]

At the federal level in the US, the Federal Trade Commission (FTC) Act and the Lanham Act (Chapter 22) enact specific rules for fashion companies.

Section 5 of the FTC Act underlines that "unfair or deceptive acts or practices" and "unfair methods of competition" in commerce are unlawful. It is the consumer’s perspective that is taken into consideration. Consumers cannot be misled or deceived by the words used by the fashion company. The fashion company must prove by proper evidence that its green claim is founded. If the fashion company does not manage to prove it, it breaches the FTC Act, and may be subject to cease and desist orders, civil penalties and fines.

The Lanham Act highlights that fashion companies can be held liable for advertising that misrepresents "the nature, characteristics, qualities or geographic origin" of goods and services.[7] If the fashion company breaches the Lanham Act, it may be subject to penalties such as injunctions. 

At the state level in the US, fashion companies may be subject to class actions. Indeed, the 50 States have laws prohibiting unfair and deceptive conduct that may constitute a legal basis for private plaintiffs to sue fashion companies because of greenwashing claims.

A fashion company must doublecheck its sustainability claims. The latter must be true and supported by objective evidence in order not to mislead consumers. By qualifying its claims carefully, a fashion company may escape greenwashing litigation against consumers and regulatory agencies.

[1] https://www.steptoe.com/images/content/1/9/v2/195909/NavigatingFTCGuidance.pdf

[2] Greenwashing In Fashion Is On The Rise, Here’s How To Spot It, GREEN QUEEN (Oct. 28, 2020), available at https://www.greenqueen.com.hk/greenwashing-in-fashion-is-on-the-rise-heres-how-to-spot-it/.

[3] 6 Ways To Be Greenwashing Vigilant, VOGUE (Feb. 12, 2020), available at

https://www.vogue.co.uk/news/article/greenwashing-in-fashion; What Exactly Is Greenwashing In Fashion & How Can I Spot It?, REFINERY 29 (June 25, 2020), available at https://www.refinery29.com/en-gb/what-is-greenwashing-fashion.

[4] Cate Billinton, Fast Fashion and Greenwashing are a Match Made in Heaven, (Dec. 12, 2019), available at https://medium.com/gbc-college-english-lemonade/fast-fashion-and-greenwashing-are-a-match-made-in-heaven-8a9a0cbe9caf.

[5] See 16 C.F.R. § 260.9.

[6] See 16 C.F.R. § 260.5.

[7] See Section 43(a)(1)(B), Lanham Act.

David Leys, Winter Policy Analyst

David is a qualified lawyer of the Brussels Bar and an applicant for California as well as New York Bars. With experience at Sidley Austin LLP, the European Commission, and the Embassy of Belgium in Tokyo, he brings an international perspective towards trade, competition and intellectual property.

Having twice attended the Marché du Film at the Festival of Cannes, David has considerable experience in licensing, partnerships and NDAs for SMEs in the cultural and creative sectors. He has recovered up to 200,000 USD for SMEs by pleading before trial and appeal courts in commercial and IP laws.

David’s other notable projects, which include dealing with an EU merger for Fortune 500 company and conducting due diligence for an IPO reflect his interest in new technologies, energy, and the Arts. He has advised and represented governments, Fortune Global 500 companies, and associations on international trade and agro-food matters.

He is extending his previous experience in trade law in the solar panel, clothing, and food industries at Unbuilt Labs, where he will be conducting legal and policy research on sustainable fashion.

His articles on diplomatic protection, trade and customs law consequences of Brexit, and trademark royalties in customs, were published in the Harvard International Law Journal Online and the Global Trade and Customs Journal.

• Columbia Law School, New York City, Master in Laws (LL.M.) ‘20

• College of Europe, Bruges, Master in European Law (LL.M.) ‘12

• Université Catholique de Louvain, Master in Law (J.D. equivalent) ‘11

• Université Saint-Louis, Brussels, Bachelor in Law ‘09