Morrison Foerster’s Class Dismissed blog provides insights, recommendations, and timely reports on the latest defense news, developments, and trends in the most current class actions lawsuits and product liability issues that affect consumer-facing companies. Through Class Dismissed, attorneys from our nationally recognized Consumer Class Action and Products Liability practices offer a real-time assessment of the developments in matters that are shaping the industry. This blog examines the full spectrum of consumer-related class action and product liability lawsuits ranging from false advertising, privacy, consumer product safety, ADA, food misbranding, TCPA, environment, retail, and government actions as well as nationwide and multidistrict litigation class actions.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

Social

Search

Editors

hunt_adam_blog_150x150.png

hunt_adam_common_640x280.jpg

hunt_adam_heroretina_2700x1160.jpg

hunt_adam_mobileretina_750x1040.jpg

hunt_adam_social_600x600.jpg

Partner

Adam Hunt is a partner in the Litigation Department of Morrison Foerster’s New York office. His practice focuses on complex litigation, with an emphasis on class action and commercial litigation.

Adam Hunt

Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office.Alexandra litigates product liability matters involving medical devices, pharmaceuticals, consumer products, automobiles, and AI. Alexandra's litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.Alexandra has significant trial experience. She has first-chaired a one-week jury trial and second-chaired a five‑week jury trial, both involving multiple claims and witnesses. She also has extensive experience in alternative dispute resolution, representing clients at mediations, mandatory settlement conferences, and early neutral evaluations.Alexandra enjoys tracking developments and keeping her clients updated on product liability and personal injury claims, frequently writing or presenting on emerging areas such as autonomous vehicles and smart devices. Alexandra’s experience also extends to professional liability, warranty claims, eminent domain, and construction law.Alexandra earned her J.D. from the University of San Diego School of Law. While in law school, the San Diego Law Review published her comment on the recovery of damages by plaintiffs in a persistent vegetative state, and she also served as a comment editor. She received her B.A. from the University of California, Los Angeles, where she majored in Political Science and minored in Spanish. A San Diego native, she attended a Spanish immersion school through the eighth grade. Alexandra is active in the San Diego community, advising students at a local college. She is also a member of several legal organizations in San Diego, including Lawyer’s Club, the Association of Business Trial Lawyers, and Wallace Inn of Court.

preece_alex_blog_150x150.png

preece_alex_common_640x280.jpg

preece_alex_heroretina_2700x1160.jpg

preece_alex_mobileretina_750x1040.jpg

preece_alex_social_600x600.jpg

Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office. Alexandra litigates product liability matters involving medical devices, pharmaceuticals, consumer products, automobiles, and AI. Alexandra’s litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.

Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office. Alexandra litigates product liability matters involving medical devices, pharmaceuticals, automobiles, AI, and robotics. Alexandra's litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.

Alexandra Barlow

<div class="videoWrapper"><iframe frameborder="0" class="sticky-video" allowfullscreen="1" title="Meet Penny Preovolos, Litigation Partner" src="https://www.youtube-nocookie.com/embed/hv7hYn-Bl7c?rel=0&showinfo=0;vq=hd1080" title="iframe"></iframe></div>Penelope has served as lead counsel in major consumer class actions and antitrust cases for more than 35 years, successfully representing high-profile defendants in antitrust, consumer fraud, and product defect matters. Her clients span a range of industries, including consumer electronics, technology, retail, publishing, food and beverage, cosmetics, and household products. According to Chambers USA, Penelope has a “great reputation for antitrust and product liability work” and is a “superb all-around antitrust lawyer.”Penelope was named the 2019 Antitrust Lawyer of the Year by the Antitrust, UCL, and Privacy Section of the California Lawyers Association. She was co-chair of MoFo’s antitrust practice for 14 years. She has served as chair of the Antitrust and Trade Regulation Section of the State Bar of California and as a member of the Ninth Circuit Advisory Committee on Local Rules and Operations. She is an editor of and frequent contributor to Morrison & Foerster’s <a href="https://classdismissed.mofo.com/">Class Dismissed blog</a>, as well as a frequent speaker about class action and antitrust issues.More About PenelopePenelope clerked for the Honorable Charles M. Merrill, United States Court of Appeals for the Ninth Circuit. She graduated cum laude from Harvard Law School, where she was executive editor of the Harvard Civil Rights – Civil Liberties Law Review. Penelope was a member of Phi Beta Kappa at the University of California, Berkeley. She was awarded the University Medal, the highest undergraduate honor at the university, as well as the English Departmental Citation (awarded to the outstanding graduate in that department).

preovolos_penelope_blog_150x150.png

preovolos_penelope_common_640x280.jpg

preovolos_penelope_heroretina_2700x1160.jpg

preovolos_penelope_mobileretina_750x1040.jpg

preovolos_penelope_social_600x600.jpg

Senior Counsel

Penelope has served as lead counsel in major consumer class actions and antitrust cases for more than 35 years, successfully representing high-profile defendants in antitrust, consumer fraud, and product defect matters. Her clients span a range of industries, including consumer electronics, technology, retail, publishing, food and beverage, cosmetics, and household products.

Penelope A. Preovolos

Zak is an associate in the Litigation Department in Morrison Foerster’s New York office.Zak’s practice focuses on class actions, commercial litigation, white collar defense, government investigations, and antitrust litigation and counseling. He has represented clients before federal and state courts in complex commercial matters, as well as in arbitration tribunals.Zak received his J.D. from New York University School of Law in 2018, where he was inducted into the Order of the Barristers. During law school, Zak also served as the Marden executive editor for the NYU Law Moot Court Board. In 2013, Zak received his B.A. and M.A. in political science from Yale University, receiving honors in his major and the Ellsworth Prize for Best Senior Essay in the Social Sciences.

newman_zak_blog_150x150.png

newman_zak_common_640x280.jpg

newman_zak_heroretina_2700x1160.jpg

newman_zak_mobileretina_750x1040.jpg

newman_zak_social_600x600.jpg

Associate

Zak Newman

Mitchell A. Hokanson is an associate in the Litigation Department of Morrison Foerster’s San Diego office.Mitchell’s practice focuses on commercial litigation and consumer class actions. He has extensive experience with civil litigation, including managing day-to-day strategy, propounding and responding to discovery, taking and defending depositions, and engaging in motion practice. He also has experience providing regulatory advice to clients, including pro bono partners and multinational corporations. Mitchell maintains an active pro bono practice.After law school, Mitchell worked as a judicial clerk for Justice Susan M. Carney of the Alaska Supreme Court, where he drafted bench memoranda and opinions on a wide range of state and federal law topics. Prior to joining MoFo, Mitchell worked for another international law firm, where he was a member of the Complex Civil Litigation practice group, in Los Angeles, California.Mitchell received his J.D. from Columbia Law School, where he was honored as a James Kent Scholar and Harlan Fiske Stone Scholar. While in law school he was the senior executive editor of the Columbia Journal of Environmental Law and worked as a judicial intern for Judge Sandra S. Ikuta of the United States Court of Appeals for the Ninth Circuit and Judge George B. Daniels of the United States District Court, Southern District of New York. Prior to that, Mitchell earned his B.A. from Stanford University.

hokanson_mitchell_blog_150x150.png

hokanson_mitchell_common_640x280.jpg

hokanson_mitchell_heroretina_2700x1160.jpg

hokanson_mitchell_mobileretina_750x1040.jpg

hokanson_mitchell_social_600x600.jpg

Mitchell Hokanson

favicon.ico

favicon-16x16.png

favicon-32x32.png

apple-touch-icon.png

MoFo Favicons

Morrison Foerster’s Class Dismissed blog provides insights and reports on the latest news, developments, and trends that affect consumer-facing companies. Subscribe to receive the latest updates by attorneys from our nationally recognized Consumer Class Action and Product Liability practices.

Welcome to Class Dismissed

class-dismissed-welcome-image.jpeg

class-dismissed-welcome-image

Morrison Foerster’s Class Dismissed blog provides insights and reports on the latest news, developments, and trends that affect consumer-facing companies. 

Class Action

Blog - Terms of Use

Blog - Privacy Policy

Blog - Blog Disclaimer

Blog - Attorney Advertising

morrison-foerster-blog-logo.png

Brings together legal insights and in-depth analyses on trends and complex issues shaping the global technology industry.

MoFo Tech

Equips our clients with the most up-to-date and relevant information on employment and labor law issues.

Employment Law Commentary

Stay on top of emerging issues and stay informed of developments related to the law and business of social media.

Socially Aware

In-depth analysis of developments and trends impacting government contracting.

Government Contracts Insight

The latest news and insights from the nationally recognized Consumer Class Action and Product Liability practices of Morrison & Foerster.

Class Dismissed

  Linkedin

MoFo LinkedIN

Class Dismissed Blog - RSS

Stay Connected

By submitting your data to subscribe to this blog, you approved Morrison & Foerster LLP to email you future information about MoFo news and events. You may opt-out at any time by sending a request to <a href="mailto:mofonews@mofo.com">mofonews@mofo.com</a>. To learn more about how Morrison & Foerster LLP uses and protects your personal data, please view our <a href="https://www.mofo.com/about/privacy-policy.html">Privacy Policy</a> at <a href="https://www.mofo.com/">www.mofo.com</a>.

Never miss a post from Class Dismissed. Enter your email below to stay up-to-date.

Subscribe

Class Action and Product Insights for Your Business

Morrison Foerster - Footer

Blogs -  Home Button

Home

Blog - Topics

TCPA

Announcements & Press

Antitrust

Appellate & Supreme Court

Arbitration

Autonomous Vehicles & Robotics

Aviation & Drones

Class Certification

Consumer Products

Coronavirus (COVID-19)

CPSC

Drug & Medical Device

Emergency Use Authorization (EUA)

Environmental Law

False Advertising

FCRA

Food Misbranding

Government Actions

Internet of Things

Mass Torts

Pharmaceutical & Medical Devices

Privacy

Product Liability

Public Readiness and Emergency Preparedness Act (PREP Act)

Retail

Trials

Topics

Blog - Editors

Blog - About

About

Blog - Subscribe

Adam J. Hunt

More

Alexandra Preece Barlow

Mitchell A. Hokanson

Client Alert: Jury Returns Verdict in “Manufactured in the USA” False Advertising Case

Everyone Please Stand: Supreme Court to Consider Standing Requirements for Class Actions, With the Potential to Resolve Long-standing Multi-circuit Split.

A New Era of Climate Accountability: State Climate Superfund Laws Gain Momentum

APHIS Reinstates Legacy Biotechnology Regulations: Implications for CRISPR-Edited Plants

California Updates Prop 65 Short-Form Warning Requirements

In this final installment of our series (see <a href="https://www.mofo.com/resources/insights/240319-cpsc-at-icphso-2024-enforcement-priorities">part 1</a>, <a href="https://www.mofo.com/resources/insights/240320-cpsc-at-icphso-office-of-compliance-activity">part 2</a>, and <a href="https://www.mofo.com/resources/insights/240321-cpsc-at-icphso-e-commerce-platforms">part 3</a>) discussing CPSC’s presence at the 2024 International Consumer Product Health and Safety Organization’s annual symposium, we present two smaller, but important, CPSC updates: Implementation of Reese’s Law and the upcoming mandatory eFiling requirements for importers.Read the <a href="https://www.mofo.com/resources/insights/240322-cpsc-at-icphso-reeses-law" target="_self">full client alert</a>.

CPSC at ICPHSO: Reese’s Law and Mandatory eFiling Requirement

Fertility Center Litigation

Fitbit

MicroPort

Leading Healthcare, Pharmaceutical, and Medical Device Company

Lethal Injection Matters – Major Pharmaceutical Company

Pain Pump Matters – Large Pharmaceutical Company

Major Technology Company

Leading Chemical Company

Security Device Company

In re Air Crash Near Peixoto de Azevedo, Brazil

bosman_erin_blog_150x150.png

bosman_erin_common_640x280.jpg

bosman_erin_heroretina_2700x1160.jpg

bosman_erin_mobileretina_750x1040.jpg

bosman_erin_social_600x600.jpg

Co-Chair, Litigation Department

Erin Bosman is the global co-chair of Morrison Foerster’s litigation department. Erin is also the founder and co-head of the Artificial Intelligence group and former chair of the Complex Litigation + Advisement practice group. Clients value her business strategy, seeking her comprehensive counsel throughout the product life cycle, especially in high-stakes litigation and product recalls.

Erin M. Bosman

Erin Bosman is the Global Co-Chair of Morrison Foerster’s Litigation Department. Erin is also the founder and co-head of the Artificial Intelligence Group and former chair of the Complex Litigation + Advisement Practice Group. Clients value her business strategy, seeking her comprehensive counsel throughout the product life cycle, especially in high-stakes litigation and product recalls.

Erin Bosman

Julie Park provides analytic and strategic counsel for issues in product life cycle, product liability and defective products, consumer class actions, and more.

Julie Park

Julie Park | Product Liability Lawyer

Julie Park protects her clients’ products no matter what kind of product issue they face—whether it is planning for new product development, recalling an existing product, or defending clients against product liability or consumer class actions. Drawing on her deep technical and legal expertise, Julie counsels clients on consumer product safety regulation and pharmaceutical and medical device preemption while also managing complex and multijurisdictional litigation both in state and federal court.

Julie Y. Park

Matt is an associate in the Litigation Department in MoFo’s San Diego office. Matt’s practice focuses on the product lifecycle, from early product development to litigation to end-of-life advisement. He counsels clients through complex consumer product safety regulatory landscapes and product recalls.











Matt Robinson

CPSC at ICPHSO: Reese’s Law and Mandatory eFiling Requirement



In this final installment of our series (see part 1, part 2, and part 3) discussing CPSC’s presence at the 2024 International Consumer Product Health and Safety Organization’s annual symposium, we present two smaller, but important, CPSC updates: Implementation of Reese’s Law and the upcoming mandatory eFiling requirements for importers.

This third installment of our series (see <a href="https://www.mofo.com/resources/insights/240319-cpsc-at-icphso-2024-enforcement-priorities">part 1</a> and <a href="https://www.mofo.com/resources/insights/240320-cpsc-at-icphso-office-of-compliance-activity">part 2</a>) highlights regulators and other stakeholders’ growing focus on e-commerce platforms’ role in protecting consumers from unsafe products, as the percentage of online consumer product sales continues to increase. In addition to CPSC representatives, many other symposium presenters and panelists discussed this issue at the International Consumer Product Health and Safety Organization’s 2024 annual symposium.Read the <a href="https://www.mofo.com/resources/insights/240321-cpsc-at-icphso-e-commerce-platforms" target="_self">full client alert</a>.

CPSC at ICPHSO: E-Commerce Platforms and Product Safety Responsibilities

An orthopedic implant company

A children&rsquo;s monthly subscription service product

A fertility company

A major technology company

A smart fitness equipment company

park_julie_blog_150x150.png

park_julie_common_640x280.jpg

park_julie_heroretina_2700x1160.jpg

park_julie_mobileretina_750x1040.jpg

park_julie_social_600x600.jpg

robinson_matt_blog_150x150.png

robinson_matt_common_640x280.jpg

robinson_matt_heroretina_2700x1160.jpg

robinson_matt_mobileretina_750x1040.jpg

robinson_matt_social_600x600.jpg

CPSC at ICPHSO: E-Commerce Platforms and Product Safety Responsibilities

This third installment of our series (see part 1 and part 2) highlights regulators and other stakeholders’ growing focus on e-commerce platforms’ role in protecting consumers from unsafe products, as the percentage of online consumer product sales continues to increase. 

This second installment of our <a href="https://www.mofo.com/resources/insights/240319-cpsc-at-icphso-2024-enforcement-priorities" target="_self">series</a> highlights CPSC’s Office of Compliance Activity and continued aggressive enforcement efforts.Multiple presenters emphasized CPSC’s continued aggressive enforcement. Commenters frequently repeated the statistic that CPSC obtained over $52 million in civil penalties in its fiscal year 2023. Further, since January 2021, CPSC has settled 11 civil penalty investigations, for a combined total of over $100 million. Jana Fong-Swamidoss, Chief of Staff to CPSC Chair Alexander Hoehn-Saric, explained that this trend is consistent with CPSC’s view that it is an enforcement agency and not just a regulator.Read the <a href="https://www.mofo.com/resources/insights/240320-cpsc-at-icphso-office-of-compliance-activity" target="_self">full client alert</a>.

CPSC at ICPHSO: Office of Compliance Activity

CPSC at ICPHSO: Office of Compliance Activity

This second installment of our series highlights CPSC’s Office of Compliance Activity and continued aggressive enforcement efforts.

The Consumer Product Safety Commission (CPSC) was well represented at the International Consumer Product Health and Safety Organization’s annual symposium in Orlando, which took place in February. Agency representatives provided a number of insights to consumer product safety stakeholders. This week, we will be providing an overview of topics covered by CPSC at ICPHSO, starting with CPSC’s 2024 priorities.Read the <a href="https://www.mofo.com/resources/insights/240319-cpsc-at-icphso-2024-enforcement-priorities" target="_blank">full client alert</a>.

CPSC at ICPHSO: 2024 Enforcement Priorities

The Consumer Product Safety Commission (CPSC) was well represented at the International Consumer Product Health and Safety Organization’s annual symposium in Orlando, which took place in February. 

CPSC at ICPHSO: 2024 Enforcement Priorities

On March 7, 2024, the U.S. Senate confirmed Doug Dziak as a Commissioner of the Consumer Product Safety Commission (CPSC), filling the final Commissioner seat that has remained vacant since Commissioner Dana Baiocco’s resignation on October 5, 2022. Even with this confirmation of Commissioner Dziak—a Republican—the Democratic Commissioners retain a 3-2 majority on the CPSC. President Biden was obligated to fill the seat with a Republican, as no more than three Commissioners may belong to the same party, and Democrats already held a 3-1 majority when he nominated Dziak in March 2023.Commissioner Dziak is no stranger to the CPSC and the consumer product regulatory landscape. He has served as Chief Counsel to Commissioner Peter Feldman since 2021 and, prior to his time at the CPSC, he held senior staff roles with multiple senators. Commissioner Dziak’s term will end later this year on October 27, 2024, but because he is filling the remainder of Commissioner Baiocco’s term, he may continue to serve as a “hold-over” Commissioner for a year until October 27, 2025. He may also continue to serve if he is reappointed after his term expires.Given that the Democratic majority at the Commission remains intact, we expect the CPSC to continue its aggressive enforcement activity and push Congress for more enforcement authority. We expect to see this trend continue absent an administration change in the upcoming election.Our Product Life Cycle Group will continue to provide updates on CPSC compliance and enforcement trends.

gettyimages-681407458-600px_image.jpg

Senate Confirms Doug Dziak as Fifth CPSC Commissioner

Consumer Product Safety Enforcement To Heat Up Under Biden Administration

gettyimages-681407458-600px_image1.jpg

gettyimages-681407458-600px_image1

On March 7, 2024, the U.S. Senate confirmed Doug Dziak as a Commissioner of the Consumer Product Safety Commission (CPSC), filling the final Commissioner seat that has remained vacant since Commissioner Dana Baiocco’s resignation on October 5, 2022.

Senate Confirms Doug Dziak as Fifth CPSC Commissioner

Dorris v. Danone Waters of America is one of a growing number of lawsuits filed against companies for making claims regarding their carbon footprint. While similar cases have been winding through the courts, Dorris is the first case in which a federal judge has addressed whether a lawsuit challenging a carbon neutral claim can survive a motion to dismiss on the merits.On January 10, 2024, U.S. District Court Judge Nelson Román of the Southern District of New York ruled that a lawsuit against Danone Waters of America (“Danone”) involving “carbon neutral” claims on evian water bottles can proceed.<a href="#_ftn1" target="_self">[1]</a> The opinion, which noted that “consumers are confused” by the term “carbon neutral” and found that a reasonable consumer could be misled by the representation on the product’s label, may embolden the plaintiffs’ bar and spur more lawsuits targeting companies for carbon-related claims.Dorris’s ClaimsIn October 2022, plaintiff Stephanie Dorris filed a putative class action complaint against Danone, alleging that she was misled by Danone’s “carbon neutral” claims on its product “evian Natural Spring Water” bottled water to believe that evian’s manufacturing did not result in carbon dioxide releases to the atmosphere and paid a price premium based on that alleged misrepresentation.To support her claim, Dorris argued that “carbon neutral” is an ambiguous and deceptive term and pointed to various publications that she claimed showed that consumers either did not know what the term meant or often mistook it for “carbon zero” or “carbon free,” including a report by the <a href="https://pro.morningconsult.com/instant-intel/carbon-neutral-consumer-awareness'" target="_blank">Morning Consult</a>, which found that 30% of Americans did not know what the term meant, while 29% incorrectly defined the term. She also challenged the use of carbon offsets to substantiate “carbon neutral” claims, citing reports that argued that carbon offsets often overstated their impact on carbon reductions and calling the carbon offset economy “murky and highly questionable.”Finally, she alleged that Carbon Trust’s “carbon neutral” footprint logo on evian bottles was misleading. Carbon Trust is a third-party organization that verifies “carbon neutral” claims. Dorris claimed it was unclear from the logo whether the “carbon neutral” claim was based on Danone’s calculations or Carbon Trust’s calculations. Further, she alleged that, even if it were clear that the “carbon neutral” claim was based on Carbon Trust’s calculations, the claim would still be misleading because “[n]owhere on the packaging or the bottle does Defendant explain what Carbon Trust is, what their carbon neutral logo means, or how Defendant goes about achieving Carbon Trust’s standards.”Dorris brought claims under California, Massachusetts, and New York consumer protection laws. She also alleged breach of express warranty, breach of implied warranty, unjust enrichment, and fraud.Danone’s Motion to DismissOn April 27, 2023, Danone filed a motion to dismiss, arguing the label was not misleading because the water bottle stated that it was certified by Carbon Trust as “carbon neutral,” which was true, and that Dorris’s grievance was with Carbon Trust’s use of carbon offsets in its certification methodologies.Danone also argued that it did not need to provide a calculation of its carbon neutrality claims because certifications like the Carbon Trust logo “exist precisely to provide a ‘shorthand’ to avoid lengthy explanations.” Additionally, Danone argued that the water bottle provided a link to evian’s website, which provided further information on the product’s carbon neutral certification and associated standards. With respect to consumer deception, Danone contended no reasonable consumer would be misled by the label to believe that there was zero carbon footprint associated with the product—i.e., no consumer could reasonably believe evian water is transported from factories in the French Alps to the United States without emitting any carbon at all. To support its argument, Danone asserted that (1) no carbon zero products exist, (2) the dictionary definition of “carbon neutral” encompasses the use of carbon offsets, and (3) evian’s website discloses that there is a carbon footprint associated with the water bottle.The court ultimately dismissed Dorris’s claims under New York consumer protection laws and the claim of breach of implied warranty on technical pleading standards but, on the merits, was unpersuaded and allowed the Massachusetts and California consumer protection law claims and claims of breach of express warranty, unjust enrichment, and fraud to proceed.Notably, the court concluded that a “reasonable consumer could plausibly be misled by the ‘carbon neutral’ representation on the Product’s label.” Judge Román wrote that, rather than possessing a common meaning, “carbon neutral” was more “technical and scientific, unfamiliar to and easily misunderstood by the reasonable consumer.”The court disagreed with Danone’s claim that the link to evian’s website on the product was sufficient to clarify any representations because “reasonable consumers should not be expected to visit two separate websites and read several pages to fully understand the meaning of ‘carbon neutral’ and ‘certified by Carbon Trust.’”What Dorris Means for Carbon-Related ClaimsDorris v. Danone Waters of America marks a first in carbon claims litigation. Until now, other cases involving carbon offset claims, such as Dakus v. Koninklijke Luchtvaart Maatschappij,<a href="#_ftn2" target="_self">[2]</a> have been dismissed on standing grounds. Dorris is the first case in which a federal judge has directly engaged with the question of whether carbon-related claims, specifically carbon neutral claims, can mislead consumers. The Court’s suggestion that consumers are confused by the meaning of “carbon neutral,” and that website disclosures may not be sufficient to substantiate carbon claims on product labels, leaves many companies asking how they can adequately substantiate product claims. The ruling is likely to encourage many companies to re-evaluate product claims to mitigate litigation exposure.Dorris is also further evidence of growing skepticism of climate claims that rely on carbon offsets. As consumer demand for products and services with reduced climate impact grows, so does scrutiny of the burgeoning carbon offset market, also known as the voluntary carbon market, which has been largely unregulated to this point. As discussed in a <a href="https://www.mofo.com/resources/insights/230615-uncertainty-carbon-markets-novel-carbon-offset">prior client alert</a>, in 2023, various reports challenged the integrity of carbon offsets.<a href="#_ftn3" target="_self">[3]</a> And already in 2024, a similar report published by Nature Sustainability criticized cookstove projects as overestimating their impact by as much as 920%.<a href="#_ftn4" target="_self">[4]</a>States also are turning their attention to carbon-related claims and are beginning to consider legislation to address concerns about greenwashing. In a <a href="https://www.mofo.com/resources/insights/231018-california-enacts-ab-1305-to-strengthen-the-voluntary-carbon">prior client alert</a>, we discussed California’s Assembly Bill 1305, the Voluntary Carbon Market Disclosures Business Regulation Act (VCMDA), passed in October 2023. The VCMDA requires businesses making certain emissions-related claims, such as “carbon neutral,” to provide various disclosures on their websites substantiating those claims.MoFo will continue to monitor cases and legislative action relating to companies’ carbon-related marketing initiatives and evaluate the significance to our clients. MoFo’s broad-based ESG practitioners regularly advise companies in developing multi-pronged strategies to both set and meet climate goals, while mitigating the potential litigation and enforcement risk arising from ESG disclosures, marketing, and advertising.<a href="#_ftnref1" target="_self">[1]</a> Dorris v. Danone Waters of America, Case No. 7:22-cv-08717-NSR (S.D.N.Y. Jan. 10, 2024).<a href="#_ftnref2" target="_self">[2]</a> Dukas v. Koninklijke Luchtvaart Maatschappij, N.V., 1:22-cv-07962-RA (S.D.N.Y).<a href="#_ftnref3" target="_self">[3]</a> See, e.g., Nina Lakhani, <a href="https://www.theguardian.com/environment/2023/sep/19/do-carbon-credit-reduce-emissions-greenhouse-gases" target="_blank">Revealed: top carbon offset projects may not cut planet-heating emissions</a>, The Guardian (Sep. 19, 2023); Thales A. P. West et al., <a href="https://www.science.org/doi/10.1126/science.ade3535" target="_blank">Action needed to make carbon offsets from forest conservation work for climate change mitigation</a>, 381 Science 6660, 873 (2023); Patrick Greenfield, <a href="https://www.theguardian.com/environment/2023/jan/18/revealed-forest-carbon-offsets-biggest-provider-worthless-verra-aoe" target="_blank">Revealed: more than 90% of rainforest carbon offsets by biggest certifier are worthless, analysis shows</a>, The Guardian (Jan. 18, 2023).<a href="#_ftnref4" target="_self">[4]</a> Annelise Gill-Wiehl et al., <a href="https://www.nature.com/articles/s41893-023-01259-6.epdf?sharing_token=6-EF0XOytgy6s1HMyvFWUNRgN0jAjWel9jnR3ZoTv0PY5koFksowKMxA7MIi6wx9OA04W8v_UKPTy7CKTglfUCvTI93MdjiaHTsUGRasUK2DG7Mxl7htCwwOiKlSXJL-qkrLRw6h9BbxA17jIEjcKoqw2E6ucNSM00hdlxKJSKKG9tCl4u_QsBZMRGAHY8_c7Rkm3aAxc1oOKbZDAjvyYqa608R4kAF1p2JLxE90HR0UxpGv_tvIylLks5PVezAXSO-Hwmbp5-s5IFL_eVmYn4sJFnojXPv8yeAn1HJFj5f7zu560vpiaH809I7NeKU0lOJ14Y_UR7hohbu95z3RyWn8aju3Wp3V70s9p9-jI2c%3D&tracking_referrer=www.theguardian.com" target="_blank">Pervasive over-crediting from cookstove offset methodologies</a>, Nature Sustainability (Jan. 23, 2024).

Plaintiff Survives Motion to Dismiss in evian Water Bottle “Carbon Neutral” Suit

deboer_krista_blog_150x150.png

deboer_krista_common_640x280.jpg

deboer_krista_heroretina_2700x1160.jpg

deboer_krista_mobileretina_750x1040.jpg

deboer_krista_social_600x600.jpg

Krista deBoer’s practice involves the full range of environmental, climate, and green claims issues. As a partner in MoFo’s Class Actions + Mass Tort practice group, Krista represents clients in environmental and toxic tort litigation, Proposition 65 litigation, and consumer class actions 

Krista S. deBoer

Krista deBoer