In a recent article for Law360, Thompson LLP founding and managing partner Ben Thompson examines how "greenwashing," the practice of making environmental claims that outpace what a brand can actually substantiate, has moved from a reputational concern for fashion brands to a legal one. Regulators and plaintiffs' counsel are now applying the same scrutiny to sustainability marketing that a decade ago was reserved for a brand's core commercial claims.
In "Fashion Greenwashing Risk Goes From Reputational To Legal," Thompson traces the shift through recent litigation and regulatory action: a putative class action against Lululemon Athletica over its Be Planet campaign, a parallel suit against H&M's Conscious Choice collection and FTC settlements with Walmart and Kohl's over "bamboo" labeling on rayon garments. He also points to California's Responsible Textile Recovery Act (S.B. 707), the country's first extended producer responsibility law for apparel.
On the international front, an April 2025 joint letter from more than a dozen international consumer protection authorities warned fashion retailers that terms like "conscious," "green" and "sustainable" often fail to meet substantiation requirements.
Key themes explored in the article:
- Why favorable rulings on standing in greenwashing suits do not resolve the underlying question of whether the claims were misleading
- What the FTC's overdue Green Guides update is expected to require for carbon-neutral, net-zero and recycled content claims
- How California's S.B. 707 compliance deadline (PRO membership by January 1, 2027) creates structural obligations for virtually every brand of meaningful scale
- Why international regulators are coordinating enforcement postures well ahead of U.S. rulemaking
- How brands can build claim-specific, documented sustainability language before a campaign goes to market rather than during discovery
Thompson cautions that, “Sustainability language in advertising, on packaging, in press materials and in investor communications should be mapped against product-specific data — e.g., materials composition, supply chain emissions and end-of-life options.” General descriptors like "sustainable" and "eco-friendly," applied without substantiation, are already a target under existing FTC guidance and will become more vulnerable once the Green Guides are updated.
In practice, fashion brands should review sustainability claims with the same rigor as any other material representation, mapped against supply chain data, certifications and offset dependencies before they build a marketing campaign, design packaging or draft a press release.