I’ve written before about the important role of certification marks in green branding, and a recent California district court decision involving the Energy Star certification highlights their continued significance.
The Energy Star program seeks to aid investment in energy efficient products by providing information that consumers and investors can use to research and compare green product or project choices.
The U.S. Environmental Protection Agency (EPA) works with the U.S. Department of Energy and manufacturers to award the ENERGY STAR certification to products that meet particular energy savings standards.
Named plaintiffs Kyle Dei Rossi and Mark Linthicum brought a class action lawsuit against Whirlpool for selling refrigerators bearing the Energy Star logo that were later determined not to comply with the Energy Star requirements and were disqualified from the program.
The complaint, filed in the Eastern District of California, alleged that Whirlpool’s misrepresentations that the refrigerators met the Energy Star guidelines was a breach of the products’ express warranty and implied warranty of merchantability, a violation of the federal Magnuson-Moss Warranty Act, the California Consumer Legal Remedies Act (CLRA), California Unfair Competition Law (UCL), and California False Advertising Law.
Whirlpool moved to dismiss the complaint, and a recent court decision granting the motion in part and denying it in part provides helpful guidance on which causes of action effectively support greenwashing claims in connection with certification mark abuse [an enhanced version of this opinion is available to lexis.com subscribers].
Perhaps the most significant portion of the decision is the court’s holding that the express warranty claim was satisfied by affixation of the Energy Star certification mark to the refrigerators. This act by Whirlpool conferred a specific and express warranty because it communicated that the products met the Energy Star requirements:
Although Defendant alleges that this logo does not confer a specific and express warranty, Defendant does not provide any reason for affixing this logo to the product other than to signify that the product meets the Energy Star specifications. Simply put, the Court cannot fathom any other reason for affixing the logo in such a manner. . . if Defendant’s intention was simply to signify that the product was energy efficient, it could have done so without affixing the Energy Star certification logo. Thus, the Court finds that affixing this logo to the product satisfies the definition of an express warranty . . .
The court further found that the Plaintiffs adequately pleaded the exact terms of the warranty because the complaint noted that the Energy Star certification required the refrigerators to be at least 20% more efficient than minimum standard models.
Whirlpool did succeed, however, in convincing the court that the breach of implied warranty of merchantability claim should be dismissed. There, the test is whether the refrigerator could serve its ordinary purpose, and there was no allegation that the refrigerators at issue failed to properly refrigerate.
The federal Magnuson-Moss Warranty Act requires the plaintiff to show that the performance of the product was guaranteed over a specific time period. The court dismissed this claim because the Energy Star logo does not in itself express or denote a time period.
The court allowed Plaintiffs’ California CLRA claim to go forward because the complaint alleged that Whirlpool knowingly mislabeled the refrigerators and therefore may have either intentionally misrepresented the energy efficiency of the products or intentionally labeled them with information it had not verified as accurate.
The UCL claim also survived the motion to dismiss for the same reason, i.e., that the allegation of knowingly mislabeling the products could support a claim under the fraudulent acts or promises prong of the UCL. In addition, the failure to meet the Energy Star standards meets the law’s unfair practice prong.
Finally, the court denied Whirlpool’s motion as to Plaintiffs’ California state false advertising claim. The court held that the numerous pages of Energy Star advertisements used by Whirlpool cited in the complaint and the specific instances described in which Dei Rossi and Linthicum saw the Energy Star logo on the inside of refrigerator products at retail stores sufficed to support the claim.
Lawyers selecting and pleading various federal, state, and common law claims in greenwashing cases, particular those involving certification mark abuse, would be wise to read this decision.
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