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.[1] 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 Claims
In 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 Morning Consult, 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 Dismiss
On 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 Claims
Dorris 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,[2] 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 prior client alert, in 2023, various reports challenged the integrity of carbon offsets.[3] And already in 2024, a similar report published by Nature Sustainability criticized cookstove projects as overestimating their impact by as much as 920%.[4]
States also are turning their attention to carbon-related claims and are beginning to consider legislation to address concerns about greenwashing. In a prior client alert, 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.
[1] Dorris v. Danone Waters of America, Case No. 7:22-cv-08717-NSR (S.D.N.Y. Jan. 10, 2024).
[2] Dukas v. Koninklijke Luchtvaart Maatschappij, N.V., 1:22-cv-07962-RA (S.D.N.Y).
[3] See, e.g., Nina Lakhani, Revealed: top carbon offset projects may not cut planet-heating emissions, The Guardian (Sep. 19, 2023); Thales A. P. West et al., Action needed to make carbon offsets from forest conservation work for climate change mitigation, 381 Science 6660, 873 (2023); Patrick Greenfield, Revealed: more than 90% of rainforest carbon offsets by biggest certifier are worthless, analysis shows, The Guardian (Jan. 18, 2023).
[4] Annelise Gill-Wiehl et al., Pervasive over-crediting from cookstove offset methodologies, Nature Sustainability (Jan. 23, 2024).