A class-action lawsuit filed in the Southern District of New York this month has accused H&M of deceiving consumers about the veracity of its sustainability claims through the use of “false and misleading” environmental scorecards and advertising.
Chelsea Commodore, the lead plaintiff, charged the Swedish fast-fashion chain for incorporating on its website so-called “sustainability profiles” strewn with “falsified information” on hundreds of items.
Submitted on July 22, the lawsuit cited a June investigation by news outlet Quartz, which said it found errors in more than half of the scorecards H&M used to assert that an item of clothing was better for the planet.
The spurious figures, based on controversial Higg Materials Sustainability Index (MSI) data, came about because H&M hard-coded terms such as “less” and “reduction” into its platform, meaning the profiles only offered a positive spin on any numbers they pulled, Quartz said.
One scorecard, for instance, claimed that a dress was made with 20 percent less water than average when it was actually made with 20 percent more. Comparing the profiles of more than 600 items of clothing with Higg data, Quartz found that most showed no improvement over the baseline.
H&M, which declined to comment for this story, removed its sustainability profiles after Quartz informed it of the findings. Not long after, the Sustainable Apparel Coalition (SAC), which owns the suite of tools the MSI is part of, said it was suspending the transparency program that underpinned the scorecards. The trade group had made the decision, it said, in the wake of the Norwegian Consumer Authority’s decision that H&M and other brands would be “breaking the law” for using the MSI’s methodology to market their products as more environmentally virtuous.
The SAC, too, said it wasn’t in a position to comment because legal proceedings were underway. The organization, which counts on its roster more than 250 brands, retailers and manufacturers, said last month that it would be commissioning, “with urgency,” an independent third-party expert review of the MSI.
Commodore argued that H&M’s greenwashed “misrepresentations” extend beyond the sustainability profiles, since it claims that its products are “conscious,” a “conscious choice,” made from “sustainable materials” and prevented, through its recycling program, “from going to the landfill” through the use of green hang tags, in-store signage and online marketing.
But H&M describes as “sustainable” products those composed of “indisputably unsustainable” materials, such as polyester, which even in its recycled form does not biodegrade, sloughs off microplastics and is not recyclable, the lawsuit said. The Swedish retailer’s claims that old clothes are transformed into new garments or that they don’t end up in a landfill are similarly misleading, it said. Recycling solutions either do not exist or are not commercially available at scale for the “vast majority” of products, Commodore said. And with the “sheer volume” of textiles produced by H&M, it would take the company more than a decade to recycle what it sells in a matter of days, she added.
“The goal of H&M’s advertising scheme is to market and sell products that capitalize on the growing segment of consumers who care about the environment, but H&M does so in a misleading and deceptive way,” the lawsuit said. “By falsifying the sustainability profiles and making the sustainability misrepresentations, [the] defendant has misrepresented the nature of its products, at the expense of consumers who pay a price premium in the belief that they are buying truly sustainable and environmentally friendly clothing.”
Commodore, who purchased a cardigan from H&M’s Conscious Collection, said she and class members would not have purchased the products or paid as much if the “true facts had been known,” suffering “economic injury.”
H&M, the lawsuit said, has engaged in deceptive or misleading consumer-oriented conduct that constitutes false advertising in violation of Section 350 of the New York General Business Law.
The apparel purveyor seeks to “differentiate itself from other fashion products by greenwashing the products and its brand,” Commodore said. “This is a deceptive act and an unfair practice because [the] defendant, one of fashion’s greatest polluters, knows that the products are not sustainable and contribute to significant negative environmental harms over the entire product life cycle from cultivation to incineration.”
Commodore seeks to recover her actual damages, or $50, whichever is greater, reasonable attorneys’ fees and costs, an order enjoining H&M’s “deceptive conduct” and any other “just and proper relief” available under Section 350 of the New York General Business Law.
Devon Rufo, sustainability innovation manager at Bluebird Climate, a New York-based software platform that helps companies decarbonize their operations, characterized Commodore’s allegations as fair.
“I think there’s a massive difference between using the best-available data to make directional product improvements around fiber choice, and using that data to position your product as ‘sustainable’ in an effort to drive increased consumption,” he told Sourcing Journal. “The fashion industry has a unique obsession with material-based sustainability claims and certifications, while often turning a blind eye to the full picture of a product’s supply chain.”
For Rufo, “cherry-picking global average emissions data to tell a ‘good story’ without transparently communicating the reality of your supply chain is, in itself, unethical and misleading to consumers. It’s a shaky sales tactic, not a holistic reflection of reality.”
Brands can’t hawk a product as “sustainable” or “conscious” just because it contains recycled polyester, even if the material claim is based on primary data, he said. What happens to this polyester at the end of its life once it “inevitably” enters the environment?
“There are complex tradeoffs within fiber-choice decisions that are often overlooked when distilled to a single emissions factor or generalized across regions,” he said.” If you’re producing goods in factories that rely heavily on fossil-fuel-derived energy, your workers are paid less than a living wage, and you’re churning out ever-increasing amounts of product without meaningfully decoupling revenue from extractive manufacturing practices, nothing about your product or business is ‘sustainable’ and therefore shouldn’t be marketed as such.”
Kim van der Weerd, intelligence director at the Transformers Foundation, a denim-focused nonprofit, recalled a friend in manufacturing telling her that if the purpose of a consumer-facing product labeling tool was to empower consumers to choose products with a smaller carbon footprint or some other sustainability goal, then it had to be specific about its intent.
A global average, the friend said, does not empower consumers to buy products that have a lower carbon impact—and therefore it also will not reward the supply chains that do the work to reduce their carbon footprint.
“I know some people will dismiss this point of view as impractical. But here’s the thing: more perfect data doesn’t have to be impractical,” van der Weerd told Sourcing Journal. “Long, complex supply chains are a choice, not an inevitability. Brands and retailers create the incentive for long, complex, supply chains when they choose to offload their financial risk onto their supply chains because it’s better for their books and their shareholders.
Reducing the breadth, depth and complexity of fashion supply chains requires “more equitably distributed financial risk,” she added. “And more equitably distributed financial risk means co-dependence, it means that if you succeed, I succeed too. And if you fail, I also fail. It means partnership, in the strictest sense of the word: shared profits and losses.”
“So while we can and should debate how to communicate with consumers about these issues, my view is that sustainability starts with the producers and with the way we structure our supply chains,” van der Weerd said. “At the end of the day, that’s what this whole discussion is really about: when it comes to climate change—label or no label—we either all win, or we all lose. More equitably distributed financial risk, and the co-dependence that would come with it, requires defining one’s self-interest broadly, instead of narrowly.”