Not Going Better

The dismissal of misleading advertising claims brought against Coca-Cola has been reversed by the District of Columbia Court of Appeals

Earth Island Institute appeals the dismissal of its suit against the Coca-Cola Company, brought under the D.C. Consumer ProtectionProcedures Act, D.C. Code §§ 28-3901 to 28-3913 (“CPPA”). Earth Island alleges that Coca-Cola engages in deceptive marketing that misleads consumers into thinking that its business is environmentally sustainable, or at least that it is currently making serious strides toward environmental sustainability. In fact, in Earth Island’s telling, the sheer scale on which Coca-Cola relies on single-use plastics in its packaging—and the scale on which it intends to continue using them—renders it an environmental blight and a fundamentally unsustainable business. At a more granular level, Coca-Cola touts its efforts to increase the recyclability of its products and to use more already-recycled material when making those products. Those statements, Earth Island argues, mask the reality that recycling is not a viable means of mitigating the environmental harm that Coca-Cola inflicts via its mass production of single-use plastics—less than ten percent of recyclable plastics are in fact recycled in the United States. Earth Island’s claims amount to what is sometimes called greenwashing: companies deceptively billing themselves as environmentally friendly, in an effort to generate profits, when they are in fact far from it.

Survives a motion to dismiss

We reverse. Earth Island has stated a facially plausible misrepresentation claim, and none of the trial court’s three bases for dismissal fatally undermines it. On the first point, even aspirational statements can be actionable under the CPPA because they can convey to reasonable consumers that a speaker is taking (or intends to take) steps that at least have the potential of fulfilling those aspirations. Earth Island alleges that Coca-Cola neither takes nor intends to take any such steps, and if that is correct, then its representations could mislead reasonable consumers. On the second point, Coca-Cola’s various claims about its plastic packaging are very much statements about its “goods and services,” a term that the CPPA defines broadly to include “any and all parts of the economic output of society, at any stage or related . . . in the economic process.” D.C. Code § 28-3901(7). And on the third  point, the CPPA does not require that misleading representations be contained in a single statement in order to be actionable; a series of statements can in combination be misleading even when, taken individually, they fall short of that. While we caution that a litigant cannot unfairly strip isolated statements out of their context and then cobble them together to form an unrepresentative tapestry of what has been conveyed, that caveat does not rescue the trial court’s dismissal here.

Earth Island has plausibly alleged that Coca-Cola’s statements, when viewed in their surrounding context, mislead consumers into believing that it is an environmental steward, when it is in fact an environmental scourge. Whether Earth Island can ultimately substantiate those claims is a different question for another day. For pleading purposes, Earth Island’s complaint survives a motion to dismiss.

Associate Judge Deahl authored the opinion. (Mike Frisch)