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Increased Greenwashing Litigation and ESG Claims Backlash: Regulatory Update, Recent Class Actions, Mitigating Risk

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Tuesday, November 7, 2023

Recorded event now available

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This CLE webinar will discuss the status of federal and state greenwashing regulations, including an update on FTC and SEC regulation and enforcement as well as private litigation activity. The panelists will describe recent noteworthy greenwashing class actions along with considerations for defending these claims. The panel will also provide best practices for counsel in advising their clients on how to minimize risk when making sustainability claims in their ESG reporting and marketing materials.


Greenwashing litigation is significantly on the rise where plaintiffs are trying to hold companies accountable for their sustainability claims in advertising as well as in non-traditional marketing materials like corporate ESG reports, often through class actions, where these ESG claims are purported to be overstated, misleading, or false and unsubstantiated. For example, a recent class action filed against Delta Airlines is among the first major consumer cases targeting an airline's claims of carbon neutrality and is premised on the alleged overstated validity of carbon offset credits.

Federal and state regulators are also focused on greenwashing. In an effort to provide more guidance on how to engage in effective and compliant green marketing, the FTC is in the process of updating its Green Guides which have not been updated since 2012. The Green Guides provide guidance to companies making environmental marketing claims, including how consumers may interpret their claims and how those claims may be substantiated. While updating the Guides, the FTC continues enforcement actions against companies for greenwashing. Furthermore, many states premise their own fair advertising statutes on the Green Guides, making the revisions highly relevant in cases brought at the state level by litigants.

The SEC has also proposed new rules that will require publicly traded companies to include certain climate-related disclosures in their public filings and require investment advisers and funds associated with ESG to disclose how they pursue ESG strategies in their investments. These changes, along with elevated demand for sustainability performance from both consumers and shareholders, will lead to more reporting on sustainability matters but also heightened risk of overstatement of decarbonization and other corporate and investor ESG performance.

Listen as our expert panel discusses the status of federal and state greenwashing regulation and enforcement. The panel will address noteworthy greenwashing litigation and considerations for defending these claims. The panel will also provide best practices for minimizing risk while making ESG claims in advertising as well as corporate reporting.



  1. Greenwashing overview
    1. Stakeholder demand for ESG performance and resulting corporate claims
  2. Status of federal and state regulation
    1. FTC
      1. Green Guides update
      2. FTC enforcement action
    2. SEC
      1. Proposed climate disclosure rules
      2. SEC enforcement action
    3. Notable state regulation and enforcement activity
  3. Class action litigation
    1. Berrin v. Delta Airlines Inc.
    2. Other noteworthy recent caselaw
    3. Defense takeaways
  4. Best practices for making ESG claims and minimizing risk


The panel will review these and other important considerations:

  • What is greenwashing and what types of marketing claims increase the risk of being targeted for enforcement activity or lawsuits?
  • How have federal and state governments stepped up their greenwashing enforcement activity?
  • What can counsel learn from recent class actions?
  • What considerations should counsel and their clients be aware of when making ESG claims in marketing and voluntary and mandatory reporting?
  • When can counsel and their clients expect the FTC's final Green Guides revisions and the SEC's final climate-related disclosure rules?


Cole, Christopher
Christopher A. Cole

Partner and Chair, Advertising, Marketing, and Promotions
Katten Muchin Rosenman

Mr. Cole is a nationally recognized litigator who offers strategic counsel to some of the world’s leading...  |  Read More

Kriha, Andrew
Andrew Kriha

Holland & Knight

Mr. Kriha advises clients on a wide variety of energy and decarbonization matters. He helps clients navigate the...  |  Read More

Solorzano, Jon
Jon Solorzano

Counsel, Co-Head ESG Taskforce
Vinson & Elkins

Mr. Solorzano’s practice focuses on advising public and private companies and their boards of directors and...  |  Read More

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