Going Green? Lessons From Lululemon’s Defense of a ‘Greenwashing’ Class Action

While this outcome speaks to one of the challenges faced by greenwashing class actions, the case still serves as an important reminder that environmental claims need to be carefully tailored and substantiated to mitigate the risk of litigation and government enforcement.

Background

Lululemon, the popular athleisure fashion brand, launched the “Be Planet” campaign in October 2020. Lululemon made several express commitments to become more sustainable and reduce its environmental impact, such as promising that “100% of [its] products will include sustainable materials and end-of-use solutions by 2030.” Lululemon also made a number of general sustainability claims in its marketing and corporate materials, touting, for example, that its “products and actions avoid environmental harm and contribute to restoring a healthy planet.”
 
In July 2024, three consumers filed a putative class action against Lululemon, arguing that the Be Planet campaign was a form of greenwashing. “Greenwashing” is a critical term used to describe marketing tactics that deceptively promote a company’s products or practices as “green” or otherwise environmentally friendly, often implying an effort to distract consumers from the company’s true environmental impact.

The plaintiffs alleged that Lululemon made “unfair, false, deceptive and misleading representations by creating the … impression in consumers’ minds that [its] business practices, actions, and products positively contribute to the environment and a healthier planet when, in reality, they are causing significant damage to the environment.” The complaint alleged violations of Florida deceptive trade practice and false advertising laws and requested both monetary damages and injunctive relief.
 
Lululemon filed a motion to dismiss on several grounds, including that the plaintiffs failed to allege sufficient facts to satisfy standing requirements.

The Court’s Decision

On February 18, the court granted Lululemon’s motion, dismissing all claims in the complaint.

Addressing the request for damages, the court held that the plaintiffs failed to adequately allege an “injury in fact,” the “foremost standing requirement.” In the complaint, the plaintiffs claimed to have suffered an economic injury because they were persuaded to pay a “premium price” for Lululemon products based on the allegedly deceptive Be Planet campaign. The court rejected this argument, observing that “mere allegations of having paid a price premium are insufficient.” Instead, plaintiffs “must tie the value of the product to any purported misrepresentation.” In the court’s view, the complaint failed to “tie any aspect of Lululemon’s [allegedly deceptive] statements to the purported price premium that [the plaintiffs] paid for Lululemon’s products.” Put differently, even if the allegations regarding the Be Planet campaign were true, the plaintiffs did not allege that these practices had any direct relation to or impact on the actual products they purchased from Lululemon.

Regarding the request for injunctive relief, the court determined that the plaintiffs failed to establish “an imminent threat of a future injury.” In the complaint, the plaintiffs argued that injunctive relief was warranted because they “would like” to make future purchases from Lululemon “if” they could rely on Lululemon “to be truthful in [its] marketing statements regarding the sustainability and environmental impact of [its] products and actions.” The court found this theory of harm to be “conjectural and hypothetical” and determined that the plaintiffs “fail[ed] to allege any threat of imminent injury.”

Key Takeaways

Because of a procedural nuance, the court denied the plaintiffs’ request for leave to amend the complaint (in the 11th Circuit, leave to amend cannot be sought strictly in an opposition memorandum). Notably, though, the case was dismissed without prejudice, leaving open the possibility that the plaintiffs could file a new lawsuit in the same court with a new theory of standing. Still, this case illustrates one of the challenges that plaintiffs in greenwashing class actions have faced — establishing a concrete personal injury or economic harm — particularly when the challenged marketing involves general or aspirational comments on the brand’s sustainability or commitment to the environment.

At the same time, there is no question that it remains critical for companies to carefully vet and substantiate environmental claims to mitigate the risk of class action litigation. While the Lululemon plaintiffs were unable to establish standing, others have had more success, including in cases where the products themselves (as opposed to the brand generally) were described as being environmentally friendly. Further, plaintiffs’ firms are not easily deterred. They will continue searching for cases with advantageous facts and devising new and improved theories of standing. Finally, class actions are not the only front for companies to defend when it comes to their environmental marketing. False advertising challenges from competitors and enforcement from state regulators are additional sources of legal exposure to consider before making environmental benefit or commitment claims.

If you have any questions or concerns about green advertising compliance, please do not hesitate to reach out to the ArentFox Schiff Advertising team.