Private Law Theory

ABSTRACT
We are living in an age of information on the verge of a climate catastrophe. Access to data and increasing awareness of climate risks create consumer interest and demand for climate-friendly products and services. The use of climate-related information for advertising purposes can generate value that boost businesses’ revenue. Conversely, misinformation can also generate litigation risks at the intersection of consumer fraud, corporate accountability and environmental law. Climate-washing manifests as a distinct form of consumer fraud that targets false and misleading statements regarding climate-related risks and opportunities. The triggers for climate-washing litigation include consumer and public awareness of the climate crisis, the absence of mandatory climate-related disclosure rules and the lack of federal enforcement against climate-washing claims for consumer protection.

This Article explores the evolution, transformation and impacts of consumer fraud climate-washing lawsuits in the United States. Specifically, it analyses the principal actors that can initiate this type of litigation: (1) consumers, (2) non-profit organizations and, (3) state attorneys general. Furthermore, this Article navigates the evolution of case law and judicial interpretations that are shaping how businesses disclose climate-related information in advertising.

Public and private plaintiffs are litigating against misleading claims regarding companies’ efforts to combat climate change. Climate-washing is shaping the amorphous environmental litigation landscape, by empowering consumers deceived by false or misleading climate-related representations, as a tool for the protection of the public interest and as a form of activism. Depending on the flexibility of state consumer protection statutes and their judicial interpretation, climate-washing has transformed and, arguably, expanded over time. This Article argues that climate-washing litigation is emerging as a mechanism of corporate accountability and governance that, in the absence of mandatory federal oversight and climate-related rules, is reshaping corporate disclosures, clarifying the boundary between puffery and material deception, and influencing the future regulatory landscape.

Ballan, Barbara, Climate-washing Litigation: From Puffery to Material Lies (February 3, 2025), 98 University of Colorado Law Review (forthcoming 2026).