H&M has found itself in greenwashing lawsuit number two.
The Swedish fast-fashion giant canceled its “Conscious Choice” collection in September after a 12-year run following a reprimand from the Netherlands Authority for Consumers and Markets for employing vague and unsubstantiated terms that could mislead consumers into thinking the products are better for the environment than they really are.
And that’s exactly what seems to have happened, according to new court documents.
In a class action lawsuit by Abraham Lizama and Marc Doten filed in a Missouri federal court on Nov. 3, the plaintiffs allege that H&M unlawfully, falsely, and misleadingly marketed products under its “Conscious Choice” collection as sustainably and environmentally friendly, contending that the retailer illegally and deceptively sought to capitalize on the sustainable movement sweeping the industry.
Naturally, consumers expect products labeled as a “conscious choice,” complete with a green hangtag, to be sustainably sourced. But that’s not always the case.
The products in question are primarily made of recycled polyester, which H&M has heavily marketed as a sustainable and environmentally responsible material. But, “given that recycled polyester is a one-way street to landfill or incineration, this material does not make a product a more’ conscious choice,’ more ‘sustainable,’ or environmentally friendly,” the lawsuit states. Plus, most recycled polyester is sourced from recycled polyethylene terephthalate (PET) bottles, which is problematic. Mechanical recycling makes the fiber lose its strength, which in turn reduces quality. Recycled PET clothes aren’t necessarily infinitely recyclable and often lose durability when repurposed multiple times. Citing The Changing Markets Foundation, the suit states that downcycling PET bottles to clothes isn’t a circular solution and that these products eventually end up in landfills. Plus, recycled polyester doesn’t restrict the shedding of microplastics, meaning billions of plastic particles still end up in the ocean, the air and food chains.
The suit also makes a claim that rings familiar to many in the industry: in a circular economy, materials should be reused and recycled on a like-for-like basis to prevent waste and unnecessary mining of virgin materials. Clothes should be made into new clothes, rather than poaching from other waste streams.
Finally, and this is the kicker, H&M’s Conscious Choice Collection actually contains a higher percentage of synthetics than its primary collection, standing at 72 percent versus 61 percent, respectively. Fifty-seven percent of the clothes in the Conscious Collection use polyester, in contrast to 52 percent of the H&M main collection. The reason for the higher percentage of synthetics? Recycled polyester.
“Basing sustainability strategies on the idea that consumers can continue to consume disposable plastic goods (because they can be recycled into more products) is highly problematic,” the lawsuit states. “This method of ‘green’ marketing does not address the fundamental issue of perpetuating disposable solutions and over-consumption of natural resources.” Thus, the products give a false and misleading impression that they are indeed a “conscious choice” and are more beneficial to the environment than they really are.
Given the presence of harmful and environmentally damaging materials in the products, the plaintiffs claim that H&M’s representation that they are a “conscious choice” is deceptive. By doing so, H&M took advantage of consumers’ desire for genuinely sustainable materials at the expense of “unwitting consumers and H&M’s lawfully acting competitors, over whom H&M maintains an unfair competitive advantage.” Furthermore, citing research done at the Stern Center for Sustainable Business of New York University, the complaint says products highlighted as sustainable sell faster than those that are not. The lawsuit contends that by selling products marked as “conscious,” H&M created a “massive advantage in terms of sales and profit,” which “lies at the heart of its sustainable style focus.”
The plaintiffs also stated that they paid a premium for these products, given that they were allegedly sustainable and therefore more expensive, thus “suffered an injury of the amount of the purchase price and/or the premium paid,” the suit reads. This is important—the premium price element is the crux of the plaintiff’s ability to show they’ve suffered the necessary injury needed to have the grounds to sue. Consumers aren’t expected to fact-check every piece of clothing they buy. If the tag states it’s sustainable, a reasonable person would believe it. If not for H&M’s misrepresentations, the plaintiffs and class members wouldn’t have been willing to buy the products at said premium price.
Thus, the plaintiffs bring claims against H&M individually and on behalf of the class action for violating the Missouri Merchandising Practices Act, California’s Consumer Legal Remedies Act, False Advertising Law and Unfair Competition Law, as well as unjust enrichment, negligent misrepresentation, and fraud. On top of a class action certification—in which the plaintiffs believe there are “tens of thousands of class members” as H&M has sold millions of units of products—the plaintiffs are seeking monetary damages of more than the $5 million class action threshold as well as an order requiring that H&M “immediately cease and desists from selling its misbranded products in violation of law,” stop “continuing to label, market, advertise, distribute and sell the products in the unlawful manner,” and “undertake a corrective advertising campaign,” as well as a trial by jury on applicable issues.
H&M told Sourcing Journal that it’s “taking the allegations very seriously” and “looking into them thoroughly.”