Insights

Washington – April 30, 2024: Crowell & Moring’s Litigation Group recently filed two amicus briefs in the United States Court of Appeals for the 8thCircuit in opposition to an Iowa law that bans school officials from discussing gender identity or sexual orientation with students (its “Don’t Say Gay” provision) and requires the removal of certain books from Iowa public school libraries (its “Book Ban” provision).

Last week, New York Attorney General Letitia James filed a lawsuit against JBS USA Food Company and JBS USA Food Company Holdings (JBS USA), which together make up the American subsidiary of the world’s largest beef product producer, JBS S.A. The suit alleges that JBS USA engaged in “greenwashing,” misleading consumers about its environmental impact goals. The suit is one amongst many state attorney general lawsuits related to greenwashing or ESG claims, which have spanned across the aisle and been initiated by both Democratic and Republican attorneys general.

Since the Federal Trade Commission (“FTC”) published its updated 2023 Guides Concerning the Use of Endorsements and Testimonials in Advertising earlier this year, consumer reviews have been front of mind. This guidance covers, in part, the treatment of consumer reviews, and companies have been (or should be) preparing for an uptick in FTC enforcement. But it’s not just the FTC to watch out for. A recent wave of class actions arising under California Civil Code § 1670.8 related to a customer’s right to make statements about their experience with a seller has raised the bar for retailers to another level.

On Monday, December 18, Tennessee Attorney General Jonathan Skrmetti filed a consumer protection lawsuit against BlackRock, Inc., a large, worldwide asset manager.  The lawsuit alleges that BlackRock made false or misleading representations to Tennessean consumers regarding the extent to which Environmental, Social, and Governance (“ESG”) considerations affect BlackRock’s investment strategies in violation of Tennessee’s consumer protection law.  The suit boils down to BlackRock allegedly holding (and advertising) two inconsistent positions, which arguably leads to consumer confusion and misconception.  The first position is that BlackRock necessarily focuses on maximizing a return for its investors.  The second, a focus on minimizing environmental impact, Attorney General Skrmetti argues conflicts directly with the goal of maximizing profitable return.  The lawsuit argues that BlackRock has violated Tennessee’s consumer protection law by both greenwashing and greenhushing.