A proposed class action lawsuit accuses Nike of greenwashing in marketing claims related to its sustainability collection, arguing in part that recycled polyester and recycled nylon used in some of the products are not actually sustainable materials and thus can’t be marketed or advertised as such.

It’s an assertion that, if substantiated by the courts, has the potential to affect sustainability narratives that marketers create around products containing recycled polyester and nylon, including apparel sold in the promotional products market.

“Readers in the apparel industry need to watch this, and watch this closely,” John Conway, CEO of New York City-based media/marketing agency Astonish Media Group, said recently. “If the courts determine that these recycled fibers – assuming the company’s using them – are not sustainable materials, that throws out their entire sustainability argument, as long as they’re using, essentially, polyester.”

Still, nothing has been decided yet, and Nike is punching back against the suit, filing last week to have the case dismissed on a number of grounds. Here’s a breakdown of the case, along with perspective from promo apparel suppliers.

The Suit’s Claims

Maria Guadalupe Ellis, a Missouri resident, filed the greenwashing suit against Oregon-headquartered Nike in May in the U.S. District Court for the Eastern District of Missouri.

Greenwashing is a form of advertising or marketing spin in which public relations and marketing are deceptively used to persuade the public that an organization’s products, aims and/or policies are environmentally friendly when in fact they are not.

Ellis purchased certain Nike products that she says Nike marketed as sustainable, paying what she says was a premium on the belief they were eco-friendly, the suit states. However, the suit asserts, she and others who bought such products were deceived because the goods are not actually sustainable.

“Sustainability is a journey. The ultimate goal is to do no harm and create a fully circular industry, but the path to get there can be long and incredibly complex.” Jose Gomez, Edwards Garment

To wit, of the 2,452 products in the Nike Sustainability collection identified in the 47-page suit, only 239 of those are made with recycled materials, according to Ellis. The rest are produced from virgin synthetic materials, the lawsuit claims. Synthetic, plastic-based materials are not biodegradable or recyclable, “require loads of energy for extraction and processing, and are derived from nonrenewable resources,” the suit states.

“The vast majority of the Nike ‘sustainability’ collection products are made from plastic-based materials,” the complaint continues. “Synthetic materials like polyester, a form of plastic derived from oil, shed plastic particles called microplastics with wash and wear. They are a prime source of microplastic pollution, which is especially harmful to marine life. The products send microplastics into the oceans from the washing of plastic-based textiles such as polyester and nylon.”

Furthermore, Ellis claims that the Nike products made with recycled polyester and recycled nylon are not environmentally friendly because such materials are “still plastic” and not biodegradable.

“Once you dispose of the materials, they sit in a landfill for hundreds of years,” the suit states.

This Promo Insiders podcast from ASI Media discusses greenwashing and greenhushing – and how to avoid both.

Additionally, the suit takes aim at the approach and alleged end result of recycling plastic bottles into polyester for apparel. It says “because mechanical recycling makes the fiber lose its strength, recycled PET clothes are not guaranteed to be infinitely recyclable, and often lose durability when repurposed multiple times. ‘Downcycling’ PET bottles to clothes is not a circular solution, and eventually these products end up in landfills.”

Also, “recycled polyester does not restrict the shedding of microplastics, meaning billions of plastic particles still end up reaching the ocean, the air we breathe and our food chains,” the suit states.

Given that Nike marketed these items as environmentally friendly, the apparel maker is guilty of fraud, negligent misrepresentation, unjust enrichment and violations of Missouri’s Merchandising Practices Act, the suit maintains. Nike marketed in this way to capitalize on growing demand for “green” products, the suit says.

The plaintiff references the Green Guides – a set of administrative interpretations of the FTC Act to help marketers avoid making unfair or deceptive environmental marketing claims – to help supposedly prove allegations of deception by Nike on sustainability assertions. While intended to provide direction, the Green Guides are not a set of enforceable rules.

The complaint states that Nike should be subject to a class action suit. It asks the court for compensatory and monetary damages. Ellis also seeks to have a judge immediately order Nike to stop selling the “misbranded” products and to require the apparel firm to undertake an advertising campaign that “corrects” its allegedly greenwashed marketing/advertising.

Promo Perspectives: ‘We Can’t Let Perfect Be the Enemy of Good’

Industry suppliers ASI Media spoke with didn’t want to directly comment on Nike’s sustainability strategy or the lawsuit in particular. Still, they did offer insights related to recycled materials being used to advance efforts to operate more sustainability and produce apparel that has less of an impact on the environment, as well as the marketing of such garments.

Top 40 firm SanMar (asi/84863), an apparel company that’s promo’s largest supplier, has made the use of recycled content an important element of its plan to reduce its carbon footprint in half by 2030.

“Products made with recycled content have fewer greenhouse gas emissions than conventional alternatives and do keep waste out of landfills,” says Emily Gigot, senior manager of sustainability at SanMar.

That said, Gigot believes there’s more work to be done to reach a “perfect solution.” There needs, she notes, to be consensus on what terms like “sustainability” and “environmentally friendly” mean, for instance. Also, waste management systems need to be scaled to allow for the recycling of garments made with durable, versatile synthetic fabrics. Even so, using recycled materials in garment production is a significant step in the right direction and shouldn’t be dismissed, she says.

“Products made with recycled content have fewer greenhouse gas emissions than conventional alternatives and do keep waste out of landfills.” Emily Gigot, SanMar

When it comes to fostering a more sustainable apparel industry, “We can’t let perfect be the enemy of good in the fight against climate change,” says Gigot.

Executives from Top 40 supplier Edwards Garment (asi/51752) note that sustainability and the degree to which a product is environmentally friendly are recent and evolving concepts for which there is not a single defined and measurable standard. As such, brands need to proceed cautiously when making green claims in their marketing and advertising.

“We subscribe to the approach of making correct, fact-based product claims, and helping to educate consumers on how and where in the produce/consume/discard processes a product is better or more sustainable than previous versions,” says Jose Gomez, CEO/president of Edwards Garment.

Products that contain recycled polyester or nylon reduce deleterious environmental impact by the use of such materials, but the “consume and discard” process is not improved, Gomez says. “Integrating recycled raw materials is an initial step, not the end point, toward more sustainability,” the CEO believes. “Clarifications like this are where brands should make reasonable claims and help educate consumers.”

It shouldn’t be lost, Gomez maintains, that using recycled materials is an advancement and represents progress toward building an apparel industry with an increasingly lower impact on the planet.

“Sustainability is a journey,” Gomez says. “The ultimate goal is to do no harm and create a fully circular industry, but the path to get there can be long and incredibly complex as it often requires a fundamental shift in the way an organization operates. Consumer education and engagement is critical and truly positive advancements should be celebrated as long as the company is making a sincere effort toward the end goal.”

Nike Asks for Suit To Be Dismissed

Back on the Nike case in particular, the apparel/footwear brand filed a motion the week of July 2 to have Ellis’ lawsuit dismissed in its entirety. As of this writing, a judge hadn’t ruled on the motion.

In its court filing, Nike gives a handful of legal reasons why the case should be chucked. Firstly, the company says, Ellis tries to apply her claims against nearly 2,500 Nike products but she only purchased three of those products. As such, she lacks “standing to assert claims with respect to products she did not purchase and representations she did not see or rely upon,” the motion states.

In addition, Nike fires back that Ellis hasn’t pleaded any “actionable deception,” further asserting that the detail the law requires to prove fraud is absent from the suit. Ellis fails to establish that she acted as a reasonable consumer would to prove her claims against Nike, attorneys for the company believe. “A reasonable consumer would not be deceived” by Nike’s sustainability assertions given the brand’s “explanations and qualifications,” the dismissal motion says.

Among other things, Nike says the suit’s charges of fraud and unjust enrichment don’t hold water because Ellis has neglected to put forth facts that show Nike intended to deceive (related to fraud) or that the company received a benefit from Ellis through its alleged actions (unjust enrichment).

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