Carbon Neutrality

Massachusetts General Business Law Ch. 93A §2(a)

Massachusetts General Laws Ch. 93A was passed in 1967 as a result of the Massachusetts Consumer Protection Act. The statute protects consumers against unfair and deceptive practices and has become widely cited in many civil litigation cases over the years. It is also known as the “little FTC Act” because it poses many similarities to the Federal Trade Commission Act. MGL c.93A affords consumers the opportunity to be awarded damages for being deceived. In the context of carbon emissions, the rise of “carbon neutrality” and similar verbiage has become commonplace in company product marketing. Broad statements on environmental impact are difficult to validate and often unclear. But, for environmentally conscious consumers, marketing around emissions, sustainability, etc are factors that affect their decision to purchase a product. If companies are not precise in their environmental impact claims, MGL c.93A could pave the way for future litigation.

  • Link to the case: https://casetext.com/case/dorris-v-danone-waters-of-am

    Link to the Massachusetts State Law: https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXV/Chapter93a/Section2

    Please note that the following brief was prepared by a student.

    Heading: Dorris v. Danone Waters of Am., __ F.Supp.3d__ (SDNY, 2024)

    Facts: Plaintiffs Stephanie Dorris and John Axiotakis both purchased a bottle of Evian Water, a product produced by Danone Waters of America, Inc., in California and Massachusetts respectively. Dorris made their purchase on August 16th, 2022 while Axiotakis made their purchase in November 2022. Both consumers purchased the bottles of water because of the “carbon neutral” labeling of the product. They understood the definition of carbon neutral to mean "the Product's manufacturing did not produce CO2 or otherwise cause pollution." In addition, the carbon neutral certification on the product was associated with the Carbon Trust standard, but Evian Water did not explain what that standard meant on the product itself. According to Merriam-Webster, carbon neutral is defined as “having or resulting in no net addition of carbon dioxide to the atmosphere.” The Plaintiffs, Dorris and Axiotakis, alleged that Danone Waters of America deceived them under Massachusetts General Laws Ch. 93A because the production of the product still produces CO2 and the Defendant fails to disclose how the carbon neutral claim is calculated. This specific case was a motion to dismiss from the Defendant.

    Procedural History: The Plaintiffs first filed their complaint on October 13, 2022. The motion to dismiss was filed on April 27, 2023. On May 6th, 2016, Walsh v. TelTech Sys established that “an act or practice is deceptive if it possesses a tendency to deceive and if it could reasonably be found to have caused a person to act differently from the way he or she otherwise would have acted” under Massachusetts General Laws Ch. 93A. On August 8th, 2019, Dumont v. Reily Foods Co. established that the technical definition of terms and the common understanding of them can cause a reasonable consumer confusion when making purchases. In June 11, 2021, Downing v. Keurig Green Mt., Inc. affirmed the usage of the FTC Green Guides to identify “unfair or deceptive” marketing claims. It also affirmed that consumers should not be expected “to do research” beyond a product’s packaging to understand its environmental claims.

    Legal Issue: Do plaintiffs have a cause of action under Massachusetts General Laws Ch. 93A § 2 for companies making environmental benefit claims such as “carbon neutral” without qualification?

    Holding: Yes, under Massachusetts General Laws Ch. 93A § 2, the plaintiffs have a cause of action for companies claiming their products are “carbon neutral” without qualification.

    Rationale: The Plaintiffs argued that the Defendant “misrepresented that the Products are carbon neutral” and thus, the Defendant violated Massachusetts General Laws Ch. 93A. Namely, that the Defendant deceived the Plaintiffs under MGL c.93A, §2(a). The judge argued that Danone’s usage of “carbon neutral” could have been misinterpreted by the consumer as not utilizing carbon offsets. Since the Marriam-Webster definitions are vague and unspecific, using the term alone requires additional elaboration. Given that the Defendant did not clarify the exact technical definition of “carbon neutral” on its product and that the common interpretation of the term could have multiple meanings, the consumer could have reasonably been misled. In fact, nearly 60% of Americans do not know the definition of “carbon neutral” according to the Plaintiffs. The FTC Green Guides, which are incorporated under MGL c.93A, §2(b), also caution against making generalized environmental benefit claims that “are difficult to interpret and likely convey a wide range of meanings." as specified by 16 C.F.R. § 260.4. Section 260.4 also states that “because it is highly unlikely that marketers can substantiate all reasonable interpretations of these claims, marketers should not make unqualified general environmental benefit claims.” The judge agrees that “carbon neutral” is an example of the generalized environmental benefit claims that the FTC is implying in the FTC Green Guides. Finally, even if the definition of “carbon neutral” was well established, the Defendants made it too difficult for consumers to access information on its carbon neutral certification. Consumers should not be expected to do additional research beyond the container to understand the product’s claims.

    Dissenting Opinion: n/a

    References

    Morgan Lewis. (February 7, 2024 Wednesday). Court Finds 'Carbon Neutral' Claim May Be Misleading, Permits Class Action to Proceed. Newstex Blogs JD Supra. https://advance.lexis.com/api/document?collection=news&id=urn:contentItem:6B8S-HMK1-JCMN-Y4SY-00000-00&context=1516831.

    “Rise in Greenwashing Cases: What Companies Need to Know.” Thompson Hine LLP, 8 Dec. 2022, www.thompsonhine.com/insights/rise-in-greenwashing-cases-what-companies-need-to-know/.

    “Court Finds ‘carbon Neutral’ Claim May Be Misleading, Permits Class Action to Proceed.” Morgan Lewis, www.morganlewis.com/pubs/2024/02/court-finds-carbon-neutral-claim-may-be-misleading-permits-class-action-to-proceed. Accessed 1 May 2024.

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