Toxic Tort Litigation Blog : Toxic Tort Lawyer & Attorney : Epstein Becker Green Law Firm : Product Liability, Contamination, Pollution

Greenwashing” involves misleading consumers concerning the environmental benefits of a product or service. In the “Six Sins of Greenwashing,” TerraChoice a marketing firm, studied over one thousand consumer products and concluded that all but one made claims that were demonstrably false or misled consumers. TerraChoice found that eco-marketers were guilty of what it described as the “Six Sins of Greenwashing,” which include:

1. Sin of the Hidden Tradeoff
2. Sin of No Proof
3. Sin of Vagueness
4. Sin of Irrelevance
5. Sin of Fibbing
6. Sin of the Lesser of Two Evils

Are companies that mislead well-intentioned customers into making purchases that do not deliver their promise subjecting themselves to class action claims alleging deceptive trade practice and false advertising? More than ever before, sellers of consumer goods are committing the “Sin of Vagueness” (for example) by claiming that their products are “chemical free,” “non-toxic,” “all natural,” or “environmentally friendly.” If a purchaser is induced to purchase a pesticide product because it claimed in advertising to be “chemical free” or “non-toxic,” and becomes ill, would a product liability claim be less difficult to prosecute?  More significantly, will the “Six Sins of Greenwashing” give rise to false advertising and deceptive trade practice class action suits?  In the absence of regulation concerning eco-marketing, what standard will courts hold consumer product sellers to in evaluating these claims. In general, product sellers can obtain guidance from:  (1) standards established by multiple private certification groups; (2) “Green Guides” issued by the United States Federal Trade Commission; and (3) ISO 14021 and ISO 14024, which provide standards on how best to communicate environmental product information. Voluntary adherence to any of these standards or guidelines will certainly not preempt a class action, but may provide credible defenses to these claims.

Whether electricity supplied to a homeowner by the local electric utility  is viewed as a "product" or a "service" may have significant ramifications in litigation.  If providing electricity constitutes a "product", injured plaintiffs can seek recovery under a theory of strict liability.  If it is not a product, the plaintiff would have to demonstrate the electric utility failed to use reasonable care.  In a recent Connecticut case, Travelers Indemnity Company of America v. Connecticut Light & Power Co, Hartford J.D. at Harford (Docket No. CV-07-5012441-S ) 2008 WL 2447351 (Conn. Super.), the trial court  held that once electricity entered the homeowner's residence, it constituted a "product" rather than a "service" and that plaintiff could  proceed under the Connecticut Product Liability Act ("CPLA").   In the case, a fire allegedly caused by voltage fluctuations broke out in the home of Travelers' insureds, Linda and Michael Murphy, resulting in property damage.  Apparently,  the Murphy's had complained to CL&P earlier about the voltage fluctuations and had been assured that the problem had been addressed.  After paying the claim,

Connecticut courts are split concerning whether electricity can be classified as a product such that a claim could be brought under the CPLA..  However, the court in Travelers relied upon what appears to be an emerging majority view nationally.  In a 1985 California appellate decision, Pierce v. PG&E, the court opined that policy justifications warranted the imposition of strict liability: (1)  difficulty of proving negligence involving a vast and complex electrical power system; (2) economic incentive for improved product safety; (3) to encourage reallocation of resources toward safer products; and (4) to spread the risk of loss among all who use the product.  What judicial limitations may be reasonable to prevent increased access to strict liability in tort for toxic tort plaintiffs injured by electricity? One bright line test might be permit electricity to be viewed as a product only when the electricity has been transferred to the consumer in a usable voltage.  Only then could a court reasonably view electricity as a consumer product.  Under this test, exposure to high voltage transmission lines would not result in a strict liability lawsuit.