Lavoile – Fall 2023

The Rise of Greenwashing Litigation against Airlines and the Impact of Conscious Consumerism

Giovanni Lavoile

Recently, there has been a rise of conscious consumerism, a trend defined by buying practices that are “driven by a commitment to making purchasing decisions that have a positive, social, economic, and environmental impact.”[i] This rise had led to more consumers expressing interest in businesses that are conscious in their decisions and factor in the well-being of workers, animals, and the environment as opposed to letting financial profit strictly rule their decisions. This trend is important as it pushes humanity in the right direction; “with the climate crisis looming and growing steadily day by day, conscious consumerism can curb the effects of human waste and pollution.”[ii] Despite the good that has come from the rise of conscious consumerism, corporations have tried to harness and benefit from this trend by releasing misleading advertisements. Suits brought by environmental groups and concerned individuals have become a new way to combat misleading, greenwashing advertisements.

Airlines, for example, have begun advertising to cater to these newfound concerns. Yet, many allege these ads mislead consumers as to the genuine “greenness” of flying.[iii] The United Kingdom’s advertising watchdog, the Advertising Standards Authority (ASA), has required companies to change or take down advertisements for being misleading on climate claims, and has cited greenwashing strategies including “unclear comparisons, vague buzzwords, and missing caveats.”[iv]

While airlines are attempting to make air travel more sustainable, because it is such an inherently polluting activity, it is misleading for airlines to claim that they are actually a sustainable business. A 2015 study on aviation by the European Parliament noted that, at the time of the study, aviation accounted for 2% of global emissions, but, if airlines continue on their current emission pathways, aviation will account for 22% by 2050.[v] As the study notes, “there is general consensus in the literature that technical and operational measures will not be able to offset emission growth in the coming decade.”[vi] While airlines are making efforts, or at least claiming to do so, “only more radical long-term technical options such as blended wing bodies or hydrogen fuels will be able to reduce emissions beyond a 1-2% annual energy efficiency improvement.”[vii] These sorts of large-scale options require an entirely new infrastructure and are difficult to implement, and “new airline models only penetrate slowly into the market with emissions being driven by older models.”[viii] With all this in mind, it is often difficult to take airlines at their word when they claim to be investing in sustainability. While these claims may be true, often, these airlines exaggerate just how committed they are, which ultimately produces the sort of misleading ads that watchdog groups have critiqued and penalized them for.

For example, Lufthansa, the German airline, released an ad featuring the slogan “Connecting the World. Protecting its Future.”[ix] The ASA declared in March of this year that the ad could not continue to run moving forward as there are “currently no environmental initiatives or commercially viable technologies in the aviation industry which would substantiate the absolute green claim,” that Lufthansa was putting forward.[x]

These watchdog groups are not the only ones attempting to hold these airlines accountable. In April, Dutch campaigners Fossielvrij NL (Fossil Free NL) and Reclame Fossielvrij, with the aid of environmental law charity Client Earth, filed a class-action lawsuit against KLM Inc., the Dutch subsidiary of Air France KLM, over greenwashing in their “Fly Responsibly” ad campaign.[xi] In a letter written to the airline in 2022, Fossielvrij and Client Earth stated that they believed KLM’s marketing and advertising practices were misleading the public as to the feasibility of sustainable flying because there is no such thing as sustainable flying.[xii] The letter gave KLM two weeks to resolve the ads in question, after which the group brought the suit against KLM.[xiii]

The claim brought against KLM alleged that the claims the airline made “sound green, but are vague, fundamentally incorrect and contrary to the Unfair Commercial Practices Directive,” which aims to combat “unfair commercial practices [that] undermine consumer confidence and destabilize the market because they prevent consumers from making good choices.”[xiv] These claims arose under Articles 6:193a and 6:193j of the Dutch Civil Code, the latter of which serves to reverse the burden of proof in an unfair trade practice case. Thus, the business must prove that the information provided is correct and complete “having regard to the circumstances of the case and taking into account the legitimate interests of the trader and any other party to the proceedings.”[xv]

Before the court could move forward with these claims, it was necessary to address whether Fossielvrij had standing to sue. On June 7th, 2023, the District Court of Amsterdam, determined that Fossielvrij, as a foundation or association with full legal capacity, may institute legal proceedings aimed at protecting similar interests of other persons, thus affirming Fossielvrij’s standing in its claims under Article 1018c (1) of the Dutch Code of Civil Procedure in conjunction with Article 3:305a of the Dutch Civil Code. This was a landmark decision that established for the first time that an environmental non-profit can bring a greenwashing claim under Dutch class action law.[xvi] The threat of this law suit led KLM to stop its “Fly Responsibly” campaign, with its website now stating: “Air travel is currently not sustainable. Check what we are doing to improve our sustainability, to reach our future goals, and the small steps you can take to help.”[xvii]  
While this was the first lawsuit of its kind, it will not be the last. In May 2023, plaintiff representative Mayanna Berrin filed a class action lawsuit on behalf of a putative class of consumers alleging Delta Airlines has “grossly misrepresented the total environmental impact of its business operation in its advertisements, corporate announcements, and promotional materials, thereby attaining undeserved market share and extracting higher prices from consumers,” particularly its claim to be “the world’s first carbon-neutral airline.”[xviii] The case, Mayanna Berrin v. Delta Airlines Inc., brought forth three main causes of action under California consumer protection statutes: (1) the Consumers Legal Remedies Act, California Civil Code § 1750, et seq.; (2) the False Advertising Law, Business and Professions Code § 17500, et seq.; and (3) the Unfair Competition Law, Business and Professions Code §17200, et seq.[xix]           

These lawsuits are groundbreaking in their ability to hold corporations accountable for false claims meant to dupe unsuspecting consumers. In the wake of the rise of these lawsuits, corporations are being urged to take efforts to protect themselves against possible claims in order to avoid “civil and SEC liability.”[xx] While it is important that corporations continue to engage in carbon offsetting, it is necessary to acknowledge, in this age of conscious consumerism, that the claims that corporations like these airlines make are incredibly hard to substantiate, and must be taken with a grain of salt. The rise of these sort of lawsuits, in conjunction with the continuing trend of conscious consumerism is a strong combination that hopefully will not only push corporations to continue carbon offsetting to draw in consumers, but also force them to be realistic and truthful in their claims through proper legal accountability.

Giovanni Lavoile is an Associate Editor with MJEAL. Giovanni can be reached at

[i] Sam Mesquita, Conscious Consumerism: What it is, Why it Matters, and How to Become a More Conscious Consumer, Pepperdine Business Blog (May 27, 2021),

[ii] Id.

[iii] Joanna Plucinska, Toby Sterling, Rajesh Kumar Singh, Greenwashing cases against airlines in Europe, US, Reuters (Sep. 13, 2023),

[iv] Olivia Rudgard, 6 Ads Banned for Greenwashing by the UK’s Advertising Watchdog, Bloomberg (May 27, 2023),

[v] Martin Cames et al., Emission Reduction Targets for International Aviation and Shipping, Committee on the Environment: Study for the ENVI Committee, Public Health and Food Safety 30 (2015),

[vi] Id.  at 22.

[vii] Id. at 23.

[viii] Id.

[ix] Olivia Rudgard & William Wilkes, UK Regulator Bans Lufthansa Ad Over Misleading Climate Claims, Bloomberg (Mar. 1, 2023),

10 Id.

[xi] Toby Sterling, Dutch court hears ‘greenwashing’ complaint against KLM over misleading ads, Reuters (Apr. 20, 2023),

[xii] Letter from Client Earth and Fossielvrij NL to Pieter Elbers, CEO and President of Koninklijke Luchtvaart Maatschappij N.V. (May 24, 2022),

[xiii] Court of Amsterdam 7 June 2023, JOR 2023, 240 m.nt. B.T. Klinger (Foundation For the Promotion of the Fossil Free Movement/Royal Luminous Maaatcappij NV) (Neth.), 2.46,!/details?id=ECLI:NL:RBAMS:2023:3499. 

[xiv] Id. at 3.2.6.

[xv] Art. 6:193 para. A BW (Civil Code); Art. 6:193 para. J BW (Civil Code).

[xvi] Court of Amsterdam 7 June 2023, supra note 13, at 5.1; Landmark greenwashing lawsuit against KLM airline granted court permission, ClientEarth (June 7, 2023),

[xvii] Sustainability, KLM, (last visited Nov. 28, 2023).

[xviii] Byron J. McLain & Cole K. Waldhauser, Carbon Neutrality Suit against Delta Airlines Signals the Arrival Time of “Greenwashing” Litigation, Foley & Lardner LLP (Jun. 15, 2023),,friendly%20representations%20false%20and%20misleading.

[xix] Brief for Petitioner, Mayanna Berrin v. Delta Airlines Inc., No. 2:23-cv-04150 (C.D. Cal.) 1, 10.

[xx] McLain, supra note 18.

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