Case 7:22-cv-08717-NSR Document 8 Filed 01/05/23 Page 1 of 39
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`Civil Action No. 7:22-cv-08717-NSR
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`Hon. Nelson S. Roman
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`FIRST AMENDED CLASS ACTION
`COMPLAINT
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`JURY TRIAL DEMANDED
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`Plaintiffs,
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`STEPHANIE DORRIS and JOHN
`AXIOTAKIS, individually and on behalf of all
`others similarly situated,
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`v.
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`DANONE WATERS OF AMERICA,
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`Defendant.
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`Plaintiff Stephanie Dorris and John Axiotakis (“Plaintiffs”), by and through their
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`attorneys, make the following allegations pursuant to the investigation of their counsel and based
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`upon information and belief—except as to allegations specifically pertaining to themselves and
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`their counsel, which are based on personal knowledge—against Defendant Danone Waters of
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`America (“Defendant”).
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`NATURE OF THE ACTION
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`1.
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`This is a class action lawsuit on behalf of purchasers of Defendant’s product,
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`“Evian Natural Spring Water” bottled water (the “Product”), in the United States.
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`2.
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`Defendant manufactures and sells a number of water bottles under the “Evian”
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`label. Defendant sells this product throughout the United States, including in California.
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`3.
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`4.
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`Defendant holds itself out as an environmentally friendly brand.
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`One of Defendant’s products is “Evian Natural Spring Water,” which is a “wide
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`range of convenient plastic water bottles to help hydrate and revitalize [consumers] throughout
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`the day.”1 The Product comes in five different sizes: 300mL, 500 mL, 750 mL, 1L, and 1.5L,
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`and the Product is sold individually, in six-packs, and in twenty-four-packs.
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`5.
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`On the labels and/or packaging of all versions of the Product, Defendant
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`represents that the Product is “carbon neutral”:
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`1 The Everyday Range, EVIAN, https://www.evian.com/en_us/natural-spring-water/bottled-water/
`(last visited Sept. 15, 2022).
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`2
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`6.
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`Under the FTC’s “Green Guides” for environmental marketing claims, the
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`“carbon neutral” claim is an “[u]nqualified general environmental benefit claim[]” that is
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`“difficult to interpret and likely convey[s] a wide range of meanings.”2 The FTC cautions
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`marketers against making “unqualified general benefit claims” “[b]ecause it is highly unlikely
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`that marketers can substantiate all reasonable interpretations of these claims.”3
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`7.
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`That is precisely the case here. Based on Defendant’s “carbon neutral”
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`representation, reasonable consumers reviewing the Product’s label and packaging would believe
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`the manufacturing of the Product is sustainable and does not leave a carbon footprint. That
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`representation is false: Defendant’s manufacturing of the Product still causes carbon dioxide
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`(“CO2”) to be released into the atmosphere. Accordingly, the carbon neutral claim is false and
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`misleading because the Product’s manufacturing process is not carbon neutral, and consumers
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`would not have purchased the Product, or paid substantially less for it, had they known the
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`carbon neutral claim was not true. And, because Defendant cannot substantiate this reasonable
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`interpretation of its claim, it has likewise violated 16 C.F.R. § 260.4.
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`8.
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`Defendant may contend that “carbon neutral” means that the “carbon credits”
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`Defendant purchases theoretically “offset” the carbon emissions produced by its Product.
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`Defendant may also contend it is “carbon neutral” as per the standards of the Carbon Trust, a
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`third-party agency. Notwithstanding these explanations appear nowhere on the Product and
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`reasonable consumers would not understand that to be the meaning of carbon neutral, those
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`interpretations are also false and misleading. Nowhere on the Product’s packaging does
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`Defendant disclose how it calculates its carbon neutrality, what the “Carbon Trust” standard
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`means or how Defendant goes about meeting that standard, and whether the standards it uses are
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`2 16 C.F.R. § 260.4(b).
`3 Id.
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`actually “carbon neutral” in that any pollution output is truly offset by other projects. Thus, even
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`assuming reasonable consumers would understand “carbon neutral” to cover these offset-based
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`interpretations, those too are false, misleading, and improperly qualified under the Green Guides.
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`9.
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`Defendant’s statements are not simply a marketing gimmick. Rather, Defendant
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`charges more for the Product based on its representation that the Product is “carbon neutral.”
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`And, Defendant knows consumers will pay more for a Product based on representations that the
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`Product is environmentally friendly. Thus, Plaintiffs and other consumers have suffered an
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`economic injury as a result of Defendant’s greenwashing. Because the Product is not actually
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`“carbon neutral” as that term is understood by reasonable consumers—or even as Defendant may
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`understand that term—Plaintiffs and other consumers were deprived of the benefit of their
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`bargain in that they paid a price premium for a product they believed was “carbon neutral,” but
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`instead received a product that was not “carbon neutral.”
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`10.
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`Plaintiffs are purchasers of the Product who assert claims on behalf of themselves
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`and similarly situated purchasers of the Product for (i) violation of California’s Consumers Legal
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`Remedies Act (“CLRA”), Cal. Civil Code §§ 1750, et seq., (ii) violation of New York General
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`Business Law (“GBL”) § 349, (iii) violation of GBL § 350, (iv) violation of Massachusetts
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`General Laws Chapter 93A, (v) breach of express warranty, (vi) breach of implied warranty, (vii)
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`unjust enrichment, and (viii) fraud.
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`PARTIES
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`11.
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`Plaintiff Stephanie Dorris is a resident of Alameda County, California who has an
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`intent to remain there, and is therefore a citizen of California. Plaintiff Dorris has purchased the
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`Product multiple times. Most recently, on August 16, 2022, Plaintiff Dorris purchased a box of
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`the 1-liter variant of the Product from Amazon for approximately $19.99. Prior to her purchase
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`of the Product, Plaintiff Dorris reviewed the Product’s labeling and packaging and saw that the
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`Product was labeled and marketed as “carbon neutral.” In purchasing the Product, Plaintiff
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`Dorris relied on Defendant’s representations that the Product was carbon neutral. Plaintiff Dorris
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`saw these representations prior to, and at the time of purchase, and understood them as
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`representations and warranties that her Product was carbon neutral. Plaintiff Dorris understood
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`“carbon neutral” to mean that the Product’s manufacturing did not produce CO2 or otherwise
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`cause pollution. Plaintiff Dorris relied on these representations and warranties in deciding to
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`purchase the Product. Accordingly, those representations and warranties were part of the basis
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`of the bargain, in that Plaintiff Dorris would not have purchased the Product on the same terms
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`had she known those representations were not true. In making her purchase, Plaintiff Dorris paid
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`a substantial price premium due to the false and misleading carbon neutral claim. Had Plaintiff
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`Dorris known that the carbon neutral claim was false and misleading, Plaintiff Dorris would not
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`have purchased the Product. Plaintiff Dorris did not receive the benefit of her bargain because
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`the Product was not, in fact, carbon neutral in that its manufacturing produced CO2 or caused
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`pollution.
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`12.
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`Plaintiff John Axiotakis is a resident of Essex County, Massachusetts who has an
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`intent to remain there, and is therefore a citizen of Massachusetts. Plaintiff Axiotakis has
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`purchased the Product multiple times. Most recently, in or about November 2022, Plaintiff
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`Axiotakis purchased a bottle of the Product from a BJ’s store in Massachusetts. Prior to his
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`purchase of the Product, Plaintiff Axiotakis reviewed the Product’s labeling and packaging and
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`saw that the Product was labeled and marketed as “carbon neutral.” In purchasing the Product,
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`Plaintiff Axiotakis relied on Defendant’s representations that the Product was carbon neutral.
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`Plaintiff Axiotakis saw these representations prior to, and at the time of purchase, and understood
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`them as representations and warranties that his Product was carbon neutral. Plaintiff Axiotakis
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`understood “carbon neutral” to mean that the Product’s manufacturing did not produce CO2 or
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`otherwise cause pollution. Plaintiff Axiotakis relied on these representations and warranties in
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`deciding to purchase the Product. Accordingly, those representations and warranties were part of
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`the basis of the bargain, in that Plaintiff Axiotakis would not have purchased the Product on the
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`same terms had he known those representations were not true. In making his purchase, Plaintiff
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`Axiotakis paid a substantial price premium due to the false and misleading carbon neutral claim.
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`Had Plaintiff Axiotakis known that the carbon neutral claim was false and misleading, Plaintiff
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`Axiotakis would not have purchased the Product. Plaintiff Axiotakis did not receive the benefit
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`of his bargain because the Product was not, in fact, carbon neutral in that its manufacturing
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`produced CO2 or caused pollution.
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`13.
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`Defendant Danone Waters of America, Inc. is a corporation incorporated under
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`the laws of the state of New York, with its principal place of business in White Plains, New
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`York. Defendant markets, sells, and distributes the Product throughout the United States,
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`including in the States of California, Massachusetts, and New York. Defendant manufactured,
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`marketed, and sold the Product during the class period.
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`JURISDICTION AND VENUE
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`14.
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`This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
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`§ 1332(d)(2)(a) because this case is a class action where the aggregate claims of all members of
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`the proposed class are in excess of $5,000,000.00 exclusive of interest and costs, there are over
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`100 members of the putative class, and at least one class member is a citizen of a state different
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`than Defendant.
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`15.
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`This Court has personal jurisdiction over Defendant because Defendant is
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`incorporated and maintains its principal place of business in New York.
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`16.
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`Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) because Defendant
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`resides in this District.
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`FACTUAL ALLEGATIONS
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`A.
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`17.
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`The Climate Crisis
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`There is a growing concern about the climate crisis, which the United Nation
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`describes as “the defining crisis of our time.”4 A study in 2021 found that an astounding
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`seventy-eight percent of people—around the globe and across all demographics—are
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`increasingly feeling the collective threat of man-made damage to the planet.5 Anxieties about
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`human-induced harm to the planet are seen across all age groups, gender, and educational and
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`sociocultural backgrounds, with climate change ranking as the most important global
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`environmental concern of our time, followed by water and air pollution.6
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`18.
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`At the crux of climate change is the “greenhouse effect.” The greenhouse effect
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`is the natural warming of the Earth that results when gases in the atmosphere trap heat from the
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`sun that would otherwise escape into space.7 While thirty percent of solar energy that reaches
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`Earth reflects back to space, roughly seventy percent of the solar energy is absorbed by Earth’s
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`land, oceans, and atmosphere.8 Eventually, the heat that was absorbed by Earth is radiated back
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`in the form of invisible infrared light.9 While a small amount of the infrared light continues into
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`space, approximately ninety percent is absorbed by atmospheric gases (“greenhouse gases”), and
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`4 See The Climate Crisis – A Race We Can Win, UNITED NATIONS, https://www.un.org/en/un75/
`climate-crisis-race-we-can-win (last visited Sept. 16, 2022); The Climate Crisis: Working
`Together for Future Generations, U.S. DEPARTMENT OF STATE, https://www.state.gov/policy-
`issues/climate-crisis/ (last visited Sept. 16, 2022).
`5 Michael Sheldrick, Increasing Global Concern About The Climate Is A Message To World
`Leaders, FORBES (Oct. 28, 2021), https://www.forbes.com/sites/globalcitizen/2021/10/28/
`increasing-global-concern-about-the-climate-is-a-message-to-world-leaders/?sh=6db94ac3c11f.
`6 Id.
`7 Melissa Denchak, Greenhouse Effect 101, NATURAL RESOURCES DEFENSE COUNCIL (July 16,
`2019), https://www.nrdc.org/stories/greenhouse-effect-101.
`8 Id.
`9 Id.
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`these gases are redirected back to Earth, which further warms the Earth.10 Below is a depiction
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`of the greenhouse effect11:
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`19.
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`Greenhouse gases from human activities are the most significant driver of
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`observed climate change since the mid-20th century.12 For 800,000 years, longer than human
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`civilization has existed, the concentration of greenhouse gases in the atmosphere was between
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`200 and 280 parts per million.13 However, in the past century, that concentration has jumped to
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`more than 400 parts per million, which is driven by human activities such as burning fossil fuels
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`10 Id.
`11 Why We Measure & Track GHGs, UMASS LOWELL, https://www.uml.edu/office-
`sustainability/Practices/Air-Climate/Greenhouse-Gas-Information.aspx (last visited Sept. 16,
`2022).
`12 Greenhouse Gases, CLIMATE CHANGE RESOURCES, https://climatechangeresources.org/
`greenhouse-gases/ (last visited Sept. 16, 2022).
`13 Melissa Denchak, Greenhouse Effect 101, NATURAL RESOURCES DEFENSE COUNCIL (July 16,
`2019), https://www.nrdc.org/stories/greenhouse-effect-101.
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`and deforestation.14 The higher concentrations of greenhouse gases—particularly carbon
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`dioxide—are causing extra heat to be trapped and climate change.15
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`20.
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`Carbon dioxide is the primary greenhouse gas emitted through human activities.16
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`In 2020, CO2 accounted for about seventy-nine percent of all U.S. greenhouse gas emissions
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`from human activities.17 While CO2 is naturally present in the atmosphere, humans are
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`disrupting the Earth’s natural carbon cycle.18 Specifically, humans are introducing more CO2
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`into the atmosphere while destroying the natural sinks—such as trees and soil—that remove and
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`store CO2 from the atmosphere.19 Thus, efforts to combat the threat of climate change are
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`heavily focused on the carbon cycle.
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`21.
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`There is worldwide recognition that the Earth’s climate is changing and that
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`climate change is a crisis.20 Climate change is evidenced by changing temperatures and
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`precipitation patterns, increases in ocean levels and acidity, melting glaciers and sea ice, changes
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`in frequency of extreme weather events, and shifts in ecological characteristics such as length of
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`harvesting seasons and bird migration patterns.21 Furthermore, climate change is affecting
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`Americans in far-reaching ways: wildfires are increasingly destroying homes and decreasing air
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`quality; extreme heat and downpours are affecting infrastructure like roads, rail lines, airports,
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`14 Id.
`15 Id.
`16 Overview of Greenhouse Gases, US ENVIRONMENTAL PROTECTION AGENCY, https://
`www.epa.gov/ghgemissions/overview-greenhouse-gases (last visited Sept. 16, 2022).
`17 Id.
`18 Id.
`19 Id.
`20 See The Climate Crisis – A Race We Can Win, UNITED NATIONS, https://www.un.org/en/un75/
`climate-crisis-race-we-can-win (last visited Sept. 16, 2022); The Climate Crisis: Working
`Together for Future Generations, U.S. DEPARTMENT OF STATE, https://www.state.gov/policy-
`issues/climate-crisis/ (last visited Sept. 16, 2022).
`21 Basics of Climate Change, US ENVIRONMENTAL PROTECTION AGENCY,
`https://www.epa.gov/climatechange-science/basics-climate-change (last visited Sept. 13, 2022).
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`port facilities, energy infrastructure, and military bases; the rise of sea levels and coastal storms
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`has increased the risk of erosion and flooding for coastal communities; climate disruption to
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`agriculture is projected to diminish the security of America’s food supply; the changing
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`chemistry of ocean water is altering marine-based food production and harming fishing
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`communities; and, longer harvesting seasons increase pollen production, intensifying and
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`lengthening the allergy season.22
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`22.
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`To combat the harms of climate change, nearly every nation on Earth adopted the
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`Paris Agreement in 2015.23 The Paris Agreement is a legally binding international treaty, which
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`aims to limit global warming through “global peaking” of greenhouse gas emissions as soon as
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`possible.24 Subsequently, in 2021, the European Union adopted the Climate Law and, in 2022,
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`President Biden signed the Inflation Reduction Act, both of which aim to reduce greenhouse gas
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`emissions.25
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`23.
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`Because of the widespread concern about the climate crisis, consumers have
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`increasingly sought out environmentally sustainable products. According to a study by IBM and
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`the National Retail Federation, nearly seventy percent of consumers in the United States and
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`22 U.S. Global Change Research Program, Climate Change: Impacts on Society,
`GLOBALCHANGE.GOV, https://www.globalchange.gov/climate-change/impacts-society (last
`visited Sept. 13, 2022).
`23 The Paris Agreement, UNITED NATIONS CLIMATE CHANGE, https://unfccc.int/process-and-
`meetings/the-paris-agreement/the-paris-agreement (last visited Sept. 13, 2022).
`24 Id.
`25 What is carbon neutrality and how can it be achieved by 2050?, NEWS: EUROPEAN
`PARLIAMENT (Sept. 7, 2022), https://www.europarl.europa.eu/news/en/headlines/society/
`20190926STO62270/what-is-carbon-neutrality-and-how-can-it-be-achieved-by-2050; Nadja
`Popovich and Brad Plumer, How the New Climate Bill Would Reduce Emissions, THE NEW
`YORK TIMES (Aug. 12, 2022), https://www.nytimes.com/interactive/2022/08/02/climate/manchin
`-deal-emissions-cuts.html?name=styln-domestic-policy-bill&region=TOP_BANNER&block=
`storyline_menu_recirc&action=click&pgtype=Interactive&variant=show&is_new=false.
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`Canada think it is important that a brand is sustainable or eco-friendly.26 The same study also
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`found that seventy percent of respondents who valued sustainability would be willing to pay, on
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`average, thirty-five percent more for eco-friendly brands.27 In other words, modern consumers
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`purchase products that claim to be environmentally friendly and are even willing to pay more for
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`such products over their non-sustainable competitors.
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`24.
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`However, the trend of consumers seeking out ostensibly eco-friendly products has
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`created a marketing tactic called “greenwashing.” “Greenwashing is the process of conveying a
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`false impression or providing misleading information about how a company’s products are more
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`environmentally sound … [C]ompanies engaged in greenwashing typically exaggerate their
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`claims or the benefits in an attempt to mislead consumers.”28 Companies make greenwashing
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`claims to “capitalize on the growing demand for environmentally sound products.”29
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`25.
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`Defendant is one such company that has engaged in “greenwashing” through its
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`marketing of the Product.
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`26 Dinara Bekmagambetova, Two-Thirds of North Americans Prefer Eco-Friendly Brands, Study
`Finds, Barron’s, Jan. 10, 2020, https://www.barrons.com/articles/two-thirds-of-north-americans-
`prefer-eco-friendly-brands-study-finds-51578661728.
`27 Id.
`28 GREENWASHING, INVESTOPEDIA, https://www.investopedia.com/terms/g/greenwashing.asp.
`29 Id.
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`B.
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`Plaintiffs and Reasonable Consumers Were Misled by
`Defendant’s “Carbon Neutral” Representation on the
`Product
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`1.
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`“Carbon Neutral” Is an Ambiguous and Deceptive Term
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`26.
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`Carbon neutral is technically defined as “having or resulting in no net addition of
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`carbon dioxide to the atmosphere.”30 However, according to a recent study, nearly sixty percent
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`of American consumers do not understand what the term “carbon neutral” means.31
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`27.
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`Even among Americans who identify as environmentalists (i.e., those who have
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`changed their consumer behavior due to a concern about climate change), less than half could
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`correctly identify the meaning of carbon neutral.32 Likewise, politicians, businesses, scientists,
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`and experts driving the climate conversation use climate action terminology interchangeably,
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`which only increases consumers’ confusion of what carbon neutral actually means.33
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`28.
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`Further, reasonable consumers often mistake “carbon neutral” for “carbon zero”
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`or “carbon free.”34 Carbon zero companies do not produce any carbon in the entire supply chain,
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`30 Carbon-neutral, MERRIAM-WEBSTER (2022); see also A Beginner’s Guide to Climate
`Neutrality, UNITED NATIONS CLIMATE CHANGE, (Feb. 26, 2021), https://unfccc.int/blog/a-
`beginner-s-guide-to-climate-neutrality
`31 30% of Americans do not know what carbon neutral means while 29% incorrectly define
`carbon neutral. Eliza Carter, Most U.S. Consumers Don’t Know What ‘Carbon Neutral’ Means,
`MORNING CONSULT (Aug. 2, 2022), https://morningconsult.com/2022/08/02/carbon-neutral-
`consumer-awareness/.
`32 24% of self-identified environmentalists do not know what carbon neutral means while 32%
`incorrectly defined carbon neutral. Eliza Carter, Most U.S. Consumers Don’t Know What
`‘Carbon Neutral’ Means, MORNING CONSULT (Aug. 2, 2022),
`https://morningconsult.com/2022/08/02/carbon-neutral-consumer-awareness/.
`33 Carbon Neutral vs Net Zero – Understanding the Difference, NATIONALGRID,
`https://www.nationalgrid.com/stories/energy-explained/carbon-neutral-vs-net-zero-
`understanding-difference (last visited Sept. 26, 2022).
`34 See Eliza Carter, Most U.S. Consumers Don’t Know What ‘Carbon Neutral’ Means, MORNING
`CONSULT (Aug. 2, 2022), https://morningconsult.com/2022/08/02/carbon-neutral-consumer-
`awareness/.
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`including the raw materials, logistics, and packaging 35 Unfortunately, no carbon zero products
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`exist yet.
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`29.
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`Companies have further deviated from the more technical definition of “carbon
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`neutral.” Instead, companies have claimed they are “carbon neutral” because they ostensibly
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`offset their CO2 emissions with agroforestry projects—such as planting trees—which
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`theoretically sequester the same amount of CO2 that the companies’ activities produced.36
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`30.
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`Notwithstanding that reasonable consumers do not understand this is what
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`companies mean, and that companies like Defendant do not actively convey this definition to
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`consumers, the “carbon offset” definition of “carbon neutral” is still questionable. Carbon
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`neutral companies still release CO2 into the atmosphere. Further, even when companies claim
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`carbon neutrality, the carbon offsetting market “is awash with challenges, fuzzy math and tough-
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`to-prove claims.”37 For these reasons, many criticize the carbon offset economy as a form of
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`greenwashing because it allows corporations to “buy complacency, political apathy[,] and self-
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`satisfaction.”38
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`35 Gateway for Accelerated Innovation in Nuclear, Carbon-Free Glossary, GAIN,
`https://gain.inl.gov/SiteAssets/GAIN_WebinarSeries/2021.03.02_CarbonFreeFutureSeries-
`1/Carbon-FreeGlossary.pdf (last visited Sept. 29, 2022); Carbon Neutral: What does that
`actually mean?, CLIMATE PARTNER, https://www.climatepartner.com/en/carbon-neutral (last
`visited Sept. 29, 2022).
`36 Id.; Carbon offset, MERRIAM-WEBSTER (2022). “Agroforestry is the intentional integration of
`trees and shrubs into crop and animal farming systems to create environmental, economic, and
`social benefits.” Agroforestry, U.S. DEPARTMENT OF AGRICULTURE, https://www.usda.gov
`/topics/forestry/agroforestry#:~:text=Agroforestry%20is%20the%20intentional%20integration,ar
`ound%20the%20world%20for%20centuries (last visited Sept. 21, 2022).
`37 See id.; Josh Lederman, Corporations Are Turning to Forest Credits in the Race To Go
`‘Carbon-neutral.’ Advocates Worry About ‘Greenwashing.’, NBC NEWS (Dec. 5, 2021),
`https://www.nbcnews.com/news/world/corporations-are-turning-forest-credits-race-go-carbon-
`neutral-advocat-rcna7259.
`38 George Monbiot, Paying For Our Sins, THE GUARDIAN (Oct. 18, 2006),
`https://www.theguardian.com/environment/2006/oct/18/green.guardiansocietysupplement; see
`also Chris Greenberg, Carbon Offsets Are a Scam, GREENPEACE (Nov. 10, 2021),
`https://www.greenpeace.org/international/story/50689/carbon-offsets-net-zero-greenwashing-
`scam/; Josh Lederman, Corporations Are Turning to Forest Credits in the Race To Go ‘Carbon-
`neutral.’ Advocates Worry About ‘Greenwashing.’, NBC NEWS (Dec. 5, 2021),
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`31.
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`The problem with the carbon offset economy is whether the offset organizations
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`actually achieve the carbon savings promised, and “there are many more bad offsets than there
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`are good offsets.”39 For example, in the Amazon, pressures to cut down the rainforest
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`overwhelm the payments being issued to protect it.40 That means a major carbon sink is being
`
`degraded and the associated emissions from the offset purchased are continuing unabated, with
`
`little accountability on either side of the transaction.41
`
`32.
`
`As journalist Lisa Song reports: “[i]n case after case … carbon credits hadn’t
`
`offset the amount of pollution they were supposed to, or they had brought gains that were
`
`quickly reversed or that couldn’t be accurately measured to begin with. Ultimately, the polluters
`
`got a guilt-free pass to keep emitting CO2, but the forest preservation that was supposed to
`
`balance the ledger either never came or didn’t last.”42
`
`33.
`
`Indeed, the FTC specifically created guidelines for carbon offset marketing
`
`because the complexity of offsets creates a heightened risk of misleading consumers. The
`
`guidelines provide that:
`
`Given the complexities of carbon offsets, sellers should employ competent
`and reliable scientific and accounting methods to properly quantify claimed
`emission reductions and to ensure that they do not sell the same reduction
`more than one time. It is deceptive to misrepresent, directly or by
`implication, that a carbon offset represents emission reductions that have
`already occurred or will occur in the immediate future. To avoid deception,
`[an organization selling an offset] should clearly and prominently disclose
`if the carbon offset represents emission reductions that will not occur for
`
`
`https://www.nbcnews.com/news/world/corporations-are-turning-forest-credits-race-go-carbon-
`neutral-advocat-rcna7259.
`39 Umair Irfan, Can You Really Negate Your Carbon Emissions? Carbon Offsets, Explained.,
`VOX (Feb. 27, 2020), https://www.vox.com/2020/2/27/20994118/carbon-offset-climate-change-
`net-zero-neutral-emissions.
`40 Id.
`41 Id.
`42 Id.
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`Case 7:22-cv-08717-NSR Document 8 Filed 01/05/23 Page 15 of 39
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`two years or longer.43
`
`Although Defendant is not selling offsets to consumers, the FTC’s guidelines
`
`34.
`
`demonstrate that environmental marketing claims are unfair and/or deceptive if they go
`
`unqualified or without a clear explanation. Further, carbon offsets are particularly complex, and
`
`thus, the FTC indicates why it is crucial for companies to properly and conspicuously advertise
`
`the reliability of the claimed emission reductions. Otherwise, environmental claims such as
`
`Defendant’s that its Products are carbon neutral are likely to deceive consumers.
`
`35.
`
`In response to these environmental marketing claims, which companies use to
`
`target the growing number of American consumers interested in environmentally friendly
`
`products, the FTC created the “Green Guides.” “The guides help marketers avoid making
`
`environmental marketing claims that are unfair or deceptive.”44 To determine “[w]hether a
`
`particular claim is deceptive [to a general audience of consumers],” the question “depends on the
`
`net impression of the … label.”45 For general environmental claims, the guidelines provide that:
`
`It is deceptive to misrepresent, directly or by implication, that a product …
`offers a general environmental benefit. Unqualified general environmental
`benefit claims are difficult to interpret and likely convey a wide range of
`meanings. … Because it is highly unlikely that marketers can substantiate
`all reasonable interpretations of these claims, marketers should not make
`unqualified general environmental benefit claims.46
`
`“Carbon neutral” is precisely the type of “unqualified general environmental
`
`36.
`
`benefit” claim that the FTC cautions marketers not to make. As alleged above, most Americans
`
`do not understand what “carbon neutral” means, and the term is subject to multiple
`
`interpretations. And, crucially, companies cannot “substantiate all reasonable interpretations of
`
`
`
`43 16 C.F.R. § 260.5
`44 16 C.F.R. § 260.1(a)
`45 16 C.F.R. § 260.1(d) (emphasis added)
`46 16 C.F.R. § 260.4
`
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`Case 7:22-cv-08717-NSR Document 8 Filed 01/05/23 Page 16 of 39
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`[this] claim[]”: manufacturing processes still emit CO2, and the “carbon offset” economy is
`
`murky and highly questionable.
`
`2.
`
`The Product and Its Carbon Neutral Claim
`
`As described above, Defendant manufactures, markets, advertises, labels,
`
`37.
`
`packages, and sells the Product—Evian Natural Spring Water—in a variety of sizes (300mL, 500
`
`mL, 750 mL, 1L, and 1.5L) and in a variety of packaging (single bottle, six-pack, and twenty-
`
`four-pack).
`
`38.
`
`On each version of the Product, as well as on the packaging, Defendant represents
`
`that each bottle is “carbon neutral.” Defendant charges consumers a price premium based on this
`
`representation, and consumers are willing to pay more for the Product under the belief that the
`
`Product is environmentally friendly.
`
`39.
`
`Defendant does not define what it means by “carbon neutral” on the Product’s
`
`labeling or packaging and does not direct consumers to Defendant’s website or another source
`
`for any supplemental definition. Given that Defendant does not define the term “carbon neutral,”
`
`reasonable consumers would and do understand and believe that the term “carbon neutral” means
`
`the manufacturing of the Product—from materials used, to production, to transportation—is
`
`sustainable and does not leave a carbon footprint. This representation is false because, as alleged
`
`above, there is no such thing as a “carbon zero” product. Accordingly, Defendant’s carbon
`
`neutral claim misleads the reasonable consumer.
`
`40. Moreover, even if reasonable consumers understood “carbon neutral” to mean
`
`that Defendant’s investments in ostensibly eco-friendly projects offset the CO2 produced by the
`
`manufacture of the Product (and reasonable consumers do not understand this), Defendant’s
`
`representations would still be misleading. For example, Defendant relies on Lineas, the largest
`
`private rail freight operator in Europe, to transport the Product from Defendant’s factory in
`
`16
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`Case 7:22-cv-08717-NSR Document 8 Filed 01/05/23 Page 17 of 39
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`Évian-les-Bains, France to retailers and consumers.47 “Nearly 60% of volumes [of the Product]
`
`are transported by train, the rest by road or via multimodal solutions.”48 However, Lineas is not
`
`a carbon-neutral organization—it only aspires to be carbon neutral by 2030—and the process of
`
`transporting the Product releases CO2 into the atmosphere.49
`
`41.
`
`Furthermore, Defendant uses the material polyethylene terephthalate (“PET”) to
`
`produce the Product, and only a minority of the PET Defendant uses is recycled.50 The
`
`manufacture of one pound of PET plastic can produce up to three pounds of CO2, which means
`
`the material Defendant uses to produce the Product emits CO2.51
`
`42.
`
`Defendant also includes the Carbon Trust footprint logo on the exterior of the
`
`packaging and on the back of the individual bottles:
`
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`47 Id.; A Thirst for Sustainability, LINEAS (Jan. 22, 2020), https://lineas.net/en/news