Sunday, November 10, 2024

New regulations seek to expose fashion greenwashers’ true colors

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It won’t be fast fashion giant H&M’s first day in court. In Commodore vs. HM Hennes Mauritz LP, filed in New York State in July 2022, the accusations were familiar: that H&M used “labeling, marketing, and advertising that is designed to mislead consumers about its products’ environmental attributes,” particularly with its “Conscious Choice” collection. The complaints were so familiar that in May 2023, H&M’s lawyer, in asking to dismiss the case, cited a Missouri judge’s decision to throw out an almost identical case against the company filed in November 2022.

It all boils down to language. The plaintiff in the Missouri case cited the Federal Trade Commission’s 2012 “Guides for the Use of Environmental Marketing Claims,” known as the “Green Guides,” particularly the statement that marketers “should not state or imply environmental benefits if the benefits are negligible.” The plaintiff also quoted the FTC’s indication that “marketers should not make unqualified general environmental benefit claims” and that “to avoid deception, marketers should use clear and prominent qualifying language that limits the claim to a specific benefit or benefits.” But the Missouri judge ruled that H&M had toed the line, stating in his decision, “H&M does not represent that its products are ‘sustainable’ or even ‘more sustainable’ than its competitors’. Rather, H&M states that its conscious choice garments contain ‘more sustainable materials’ and that the line includes ‘its most sustainable products.’”


“It’s hard to prove someone is greenwashing, and it may be easy to say you’re not when there is no objective standard.”

Hilary Jochmans

PoliticallyInFashion founder


The decision illustrates the current legal landscape around environmental claims.

“There is not a legally-binding definition of what greenwashing is at the federal or the state level,” said Hilary Jochmans, the owner of a government affairs consulting firm and the founder of PoliticallyInFashion, a Washington, D.C.-based platform for engaging fashion industry players in regulatory issues. “It’s hard to prove someone is greenwashing, and it may be easy to say you’re not when there is no objective standard.”

But the FTC rules may soon have tighter language, making it harder for advertisers to make unsubstantiated claims. In December 2022, the FTC announced that, for the first time in more than 10 years, it would be revising the Green Guides

Creating green guardrails

“Since the FTC last updated the Green Guides in 2012, the scope of environmental claims has expanded and so too has the potential for deceptive advertising,” Lauren Carey, an attorney at the Missouri-based law firm Lewis Rice, wrote in an email to Fashion Dive. “The Green Guides do not currently address a number of ‘green’ claims that have become more prevalent in the fashion industry and beyond, including claims such as ‘sustainable,’ ‘organic,’ ‘ecofriendly,’ ‘carbon neutrality,’ and ‘upcycled.’”

The FTC has asked for feedback on terms often used in sustainability-related advertising or labeling, including “net zero” or “recyclable.” It also asks whether the Commission should “revisit” the term “sustainable” itself. In 2012, it “determined it lacked a basis to give specific guidance on how consumers interpret ‘sustainable’ claims.’”  

Defining this ubiquitous term is crucial, said Jochmans. PoliticallyInFashion led a call to action in 2021 asking the FTC to update the guides. Without “guardrails” on the term “sustainable,” jaded consumers will stop buying sustainable products, she said. 

“The more you see the term, but there’s nothing there to back it up, you start to think, well what does this really mean?” Jochmans said. “I’m paying a premium for this, I’m doing a lot of due diligence to buy something that’s sustainable, but there’s no ‘there’ there. Forget about it, I’m just going to buy what I want to buy, and the pendulum is going to swing back. I think we’re at that tipping point right now.”

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