80 | Weil, Gotshal & Manges LLP LITIGATION TRENDS 2024 | 81 T O C E M P A N T I I P C A P R O W C C O N T A C T I N T A P P P A T C C L S E C such as New York and California, introducing statutes specifically authorizing such greenwashing claims, when employing eco-friendly practices, policies, and marketing, companies could consider the following: Scrutinize Representations. Review proposed labels, advertising, and any other potential representations to ensure any specific representations do not overstate the environmental benefit of products. Anticipate Increased Scrutiny and Consider Specific Disclaimers. Consider the evolving landscape and anticipate increased scrutiny in this space. Companies can review the FTC’s current Green Guides, which courts frequently analyze to assess the validity of greenwashing claims – even though the FTC’s guidelines are not legally binding. See e.g., Smith v. Keurig Green Mountain, Inc., 393 F. Supp. 3d 837, 846 (N.D. Cal. June 28, 2019). Show Your Work. Be diligent in collecting, storing, and even publishing information that supports environmental representations because such data could support dismissal of misrepresentation claims. See Lizama v. H&M Hennes & Mauritz LP, 2023 WL 3433957, at *1 (E.D. Mo. May 12, 2023); Dwyer v. Allbirds, Inc., 598 F. Supp. 3d 137, 146, 152 (S.D.N.Y. Apr. 18, 2022). Additionally, environmentally conscious investing has become susceptible to increased scrutiny by legislatures in recent years. In 2023, 21 state attorneys general signed a letter warning top asset-management companies of the legal risks environmental, social, and governance (“ESG”) standards, specifically cautioning misrepresentations in advertising or violating fiduciary duties. The U.S. Senate passed legislation in March 2023 to nullify a Department of Labor rule that allows benefit plan managers to consider ESG factors in investment decisions, but President Biden later vetoed the bill. Thereafter, a group of 25 attorneys general brought an action against the Department of Labor alleging that the rule violates ERISA and undermines protection for retirement savings. A federal judge upheld the rule, but the appeal is still pending before the Fifth Circuit. The Fifth Circuit’s ruling could have a significant impact on the evolving landscape of ESG regulations and laws. It is becoming increasingly important to carefully monitor these decisions to minimize the risks and costs associated with sustainability claims. Product Liability P R O
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