Written by: Meghan Wright
On December 06, 2022, before a Missouri federal judge, the popular clothing brand H&M Hennes and Mauritz LP (known widely as “H&M”) filed a motion to dismiss in response to a class action claim brought against their “Conscious Choice” collection.[1] This collection was marketed as being made from materials that are deemed to be more sustainable than comparative pieces of clothing from the store not included in the collection.[2]
In early November of 2022, Abraham Lizama and Marc Doten (“Plaintiffs”) filed a complaint, alleging that H&M’s clothing collection is not sustainable, but rather made from materials harmful to the environment, and therefore H&M’s advertising of sustainability was deceptive.[3] They claim that the recycled polyester utilized in the garments is chiefly sourced from recycled plastic bottles.[4] However, once plastic bottles are converted into clothing articles, it is a “one-way ticket to landfill, incineration or being dumped in nature”, as the suit suggests.[5] Plaintiffs accuse H&M of using this collection as a way to ‘greenwash’ customers.[6] ‘Greenwashing’ is a term used to describe deceiving efforts by a brand to make their goods seem more sustainable in order to appeal to the environmentally conscious consumer.[7]
H&M believes these claims to be unfounded, qualifying them to be “unreasonable leaps in logic.”[8] The complaint should be dismissed, the company opined, because, inter alia, it selectively disregards the “substance and context of their candid disclosures.”[9] Also asserted in its motion to dismiss are the claims that the class actions rests on attempts to “fabricate and impute” lies on the brand.[10] “H&M is a pioneer of sustainability efforts in the fashion industry,” defendants stated, highlighting their multiple acknowledgments from independent organizations throughout decades for their leadership in such efforts.[11]
“H&M does not represent that its products are sustainable- full stop”, the brand specified, “[i]t does not even state that its clothes are ‘more sustainable’ than competitors.”[12] The brand defends that its “Conscious Choice” collection merely claimed, and disclosed via hangtags and the publicly available Material Categorization Report, that the clothing was made of more sustainable materials (recycled polyester) than those made with regularly used materials (virgin polyester).[13] Recycled polyester leads to less water, fossil fuel, and carbon dioxide use.[14]
It is the brand’s view that this marketing would lead no reasonable consumer to interpret the collection to be “inherently sustainable”, adding that they “carefully qualified” its use of the term “sustainable.”[15] In support of their argument, they cite to precedent that requires that when a court can determine as a matter of law that the public is not likely to be misled by the product, dismissal is appropriate.[16]
In regards to Missouri’s Merchandising Practices Act[17], H&M asserts that the plaintiffs have suffered no ascertainable loss, nor have consumers of the collection.[18] “Plaintiffs received precisely what they bargained for”, the brand asserted, citing that the items both by the plaintiffs contained at least 50% or more sustainable materials.[19]
The implications of this case are important, especially to environmentally aware consumers. While H&M contends that their Conscious Choice collection’s marketing was not intentionally deceptive, the attempt to appear more outwardly sustainable, and thus drive sales, is clear. However, this is not the first time a company has stretched the benefits of a product to gain more appeal among their potential clients. For example, all too often we consume advertisements clad with photoshopped models, but buying that particular item won’t make us look just like them. A consumer must always be vigilant when shopping for products, aware that businesses need to make sales to make a profit, and they will do so at the expense of their consumer’s desire to have the unbent truth.
H&M appears to be no different. Their marketing pushed the narrative that their new collection was sustainable, and consumers purchased it with the benefit of the environment in mind. However, as H&M stated, the sustainability claim was explained in plain text at the eye level of consumers. It has become the consumer’s job to conduct proper research prior to buying, especially when looking to buy products that are classified as sustainable. While brands should be more upfront with potential buyers, it is the potential buyer’s choice what they wish to consume. H&M provided the information, but it was the buyer’s job to seek it out. Especially with environmentally-cautious shoppers, looking for more background before buying will aid in making more informed purchases.
[1] Kelly Mehorter, H&M Hit with Another ‘Greenwashing’ Class Action Over Allegedly False ‘Conscious Choice’ Sustainability Claims, ClassAction.org, (Nov. 7, 2022), https://www.classaction.org/news/handm-hit-with-another-greenwashing-class-action-over-allegedly-false-conscious-choice-sustainability-claims.
[2] Madeline Lyskawa, H&M Shoppers’ ‘Greenwashing’ Claims are Baseless, Law360, (Dec. 7, 2022, 2:33 ET), https://www.law360.com/environmental/articles/1555818/h-m-says-shoppers-greenwashing-claims-are-baseless-.
[3] Mehorter, supra note 1.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Defendant’s Memorandum of Law in Support of Motion to Dismiss and/or Strike at 16, Lizama et al v. H&M Hennes & Mauritz Lp, No. 4:22 CV 1170 RWS, 2022 U.S. Dist. (E.D. Mo. Dec. 30, 2022).
[9] Id. at 8.
[10] Id.
[11] Id.
[12] Id at 15.
[13] Id.
[14] Id. at 17.
[15] Id at 24.
[16] Id. at 15 (citing to ” Hairston v. S. Beach Beverage Co., 2012 WL 1893818, at *4 (C.D. Cal. May 18, 2012)).
[17] The MissourI Merchandising Practices Act provides a statutory cause of action for damages stemming from ““the act, use or employment by any person of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise…” Mo. Ann. Stat. § 407.020 (West).
[18] Lyskawa, supra note 2.
[19] Id.