Fiji lawsuit could be a drop in the bucket

A class-action complaint contests Fiji's carbon-negative claims.

A lawsuit filed last month contesting Fiji Water’s claims that its signature square bottle is carbon-negative may spell trouble in paradise for the bottled water company. But it could also signal a coming swell of legal challenges against companies’ green marketing claims, including in the often-hazy arena of carbon offsets.

That’s thanks in part to new federal guidelines about environmental marketing claims. After more than a decade, the United States Federal Trade Commission has revised its guides for how marketers should advertise their products’ environmental attributes.

The updated guides, which advise the agency on how to enforce existing laws about false or deceptive advertising, are expected to be finalized later this year. They include direction about how companies should use ecolabels and make environmental claims like “recyclable” and “compostable.”

This proposed revisions also include a section on carbon offsets. Specifically, the FTC says:

Marketers should have competent and reliable scientific evidence to support their carbon offset claims, including using appropriate accounting methods to ensure they are properly quantifying emission reductions and are not selling those reductions more than once.

Marketers should disclose if the offset purchase funds emission reductions that will not occur for two years or longer.

Marketers should not advertise a carbon offset if the activity that forms the basis of the offset is already required by law.

The lawsuit against Fiji represents the latest criticism against a company that ships bottled water thousands of miles to U.S. consumers.

In 2007, Fiji announced plans to make its product carbon-negative beginning in 2008, meaning it would purchase enough annual carbon offsets to cover 120 percent of its carbon footprint. The class action complaint filed in late December in U.S. District Court in Santa Ana, Calif., says Los Angeles-based Fiji’s carbon-negative claims amount to false advertising. According to Reuters, the complaint filed by a Southern California law firm alleges: 

"Defendants' carbon-negative claim is deceptive and misleading ... reasonable consumers of FIJI water understand Defendants' 'carbon-negative' claim as meaning that Fiji Water's current operations remove more carbon from the atmosphere than they release into it. This is simply not the case; in reality, Fiji Water's operations do not remove more carbon from the atmosphere than they release into it. Instead, they use a discredited carbon accounting method called 'forward crediting.'

"To reduce their carbon footprint, corporations purchase carbon 'offset credits,' which is a generic term for any tradable certificate or permit representing the right of the purchaser to emit one ton of carbon dioxide. 'Standard offset credits' represent carbon reductions that have already taken place. By contrast, 'forward offset credits' represent carbon reductions that may or may not take place up to several decades in the future."

While federal regulators are stepping up their action against false environmental claims, pressure at the state level and from citizens, in the form of class-action lawsuits, are likely to increase as well, according to Brooks Beard, a partner at San Francisco–based law firm Morrison & Foerster, who specializes in environmental claims. 

“In all circumstances, any kind of environmental certification has to be clear, and has to limit claims to verifiable environmental benefits,” Beard said.