Environmental Working Group v. Tyson Foods, Inc.

Environmental Working Group (EWG) and Tyson Foods, Inc. (Tyson) entered into a settlement agreement to resolve EWG’s lawsuit asserting that Tyson violated the District of Columbia Consumer Protection Procedures Act by making false and misleading statements regarding Tyson’s “Climate-Smart Beef Program” and its ambition to achieve net-zero greenhouse gas emissions by 2050. Tyson denied EWG’s allegations but agreed not to make new claims or repeat old claims regarding any net-zero greenhouse gas emissions ambition “unless and until an expert mutually agreed upon by the Parties … verifies that each such claim(s) has been substantiated and is valid.” In addition, Tyson agreed not to make new claims or repeat old claims regarding any “Climate-Smart” beef program and not to market, sell, or promote beef products described as “climate smart” or “climate friendly” in the United States until the expert verifies that such claims can be substantiated and are valid. Tyson’s obligations run for five years. The parties agreed to negotiate in good faith to agree upon the expert; EWG is to pay the expert and Tyson is to reimburse EWG within 30 days of the expert’s report. The settlement agreement also referred to a confidential addendum and provided that the parties must “keep strictly confidential the amount of attorneys’ fees, expenses, costs, and consideration paid to EWG as set forth” in the addendum.

The District of Columbia Superior Court denied Tyson Foods, Inc.’s (Tyson’s) motion to dismiss a greenwashing action brought under the D.C. Consumer Protection Procedures Act (CPPA) in which the plaintiff alleged that Tyson made false or misleading statements about its commitment to achieving net zero emissions by 2050 and by advertising a “climate-smart beef” program. The court concluded that it was fair to exercise specific personal jurisdiction over Tyson and found that the plaintiff stated plausible claims for relief under the CPPA under the precedent in Earth Island Institute v. Coca-Cola Co. Regarding the net zero by 2050 claim, the court found that the plaintiff claimed a “fundamental mismatch between the allegedly minimal steps Tyson is taking and the actions that would be necessary to achieve its net-zero goal”; the court said this “vast discrepancy” paralleled the facts in Earth Island. Regarding the “climate-smart” beef program, the court found that the plaintiffs’ allegations—that Tyson did not define the term “climate-smart beef,” that the company did not release data to support the claim, and that the company sourced some of the beef from an industrial feedlot—were sufficient to show that the climate-smart beef representations might give consumers a misleading impression. The court also held that the First Amendment did not bar the plaintiff’s claims since the statements at issue were “clearly commercial speech.” But the court said that if the plaintiff was ultimately successful, the court would take care in fashioning relief so as not to infringe on Tyson’s First Amendment rights.

Environmental Working Group (EWG) filed a lawsuit against Tyson Foods, Inc.—“the second largest meat company in the United States and the world”—in D.C. Superior Court alleging that Tyson made false or misleading marketing claims regarding its commitments to reduce carbon emissions associated with its products. EWG alleged that Tyson “knowingly capitalizes” on consumers’ “well-intentioned preferences by advertising in numerous outlets a pledge to achieve ‘net-zero’ climate emissions by 2050 and marketing ‘climate-smart’ beef” but that the company “has no plan to achieve these goals and is taking no meaningful steps to do so.” EWG alleged that 85% of Tyson’s greenhouse gas emissions are from beef and that beef produced by Tyson would constitute “one of the most climate-intense foods on the market” even if “a slight reduction” in emissions from its “industrialized processes” were possible. EWG alleged, moreover, that it would not be possible to achieve substantial reductions in emissions from the company’s meat production—including nitrous oxide emissions from production of animal feed and enteric and manure management methane emissions—and that “the offsets required to zero out Tyson’s meat production emissions are both unfathomable and unavailable.” EWG alleged that even if the company reduced actual emissions by 75%, offsetting the remaining emissions would require between 30 and 48 million acres of preserved U.S. forest. EWG asserted that Tyson’s advertisements and representations regarding net-zero emissions and “climate-smart beef” violated the D.C. Consumer Protection Procedures Act. EWG asked the court to enjoin Tyson from making the false or misleading statements and to require “redress of consumer misunderstanding about the climate impact of its industrial beef production.”