To support “carbon neutral” claims for its Vuse-brand e-cigarettes, R.J. Reynolds Vapor Co. relied in part on its purchase of carbon-offset credits. The credits and their underlying carbon-offset projects were certified by an independent, nonprofit organization, Verra, under its scientifically rigorous Verified Carbon Standard (VCS) Program—the world’s most widely used greenhouse gas crediting program.
Three Vuse consumers filed a putative class action in the U.S. District Court for the Northern District of California alleging that the Vuse carbon neutral claims are false and misleading in violation of state consumer-protection laws. According to the plaintiffs, who purport to have conducted their own investigation, four Verra-certified forestry projects (located in China and Uruguay) supporting Vuse products’ carbon neutrality representations “fail to provide genuine, additional carbon reductions.” Although Reynolds had disclosed the undisputed fact that independent third parties had certified Vuse’s carbon neutrality, the plaintiffs allege that statements about Vuse’s carbon neutrality are false and misleading because the Verra-certified credits that Reynolds purchased are from projects whose carbon offsets are “illusory.”
Finding that plaintiffs “have failed to plausibly allege consumer protection claims,” the district court in Bell v. R.J. Reynolds Vapor Co., et al. issued an Order dismissing the suit. The court found that the plaintiffs’ false advertising claims represent a “challenge to [the] scientific efficacy” of carbon-offset projects that were “evaluated by qualified third parties,” i.e., “a technical disagreement over carbon-offset projects.”
The plaintiffs have appealed to the Ninth Circuit. ALF has submitted an amicus brief, authored by Executive Vice President & General Counsel Lawrence Ebner, in support of the Defendants-Appellees and affirmance.
ALF’s Amicus Brief
ALF’s brief argues that concerns about the efficacy of carbon-offset projects or the methodologies used by Verra or similar organizations to evaluate and certify them should be aired in peer-reviewed scientific journals, not cloaked as false advertising claims and adjudicated in federal or state courts.
The brief explains that this suit alleging false “carbon neutral” advertising is an attempt to use the federal judicial system to obtain a substantial damages award by second-guessing a globally respected, carbon-offset project certifier’s scientific methodologies and project-specific conclusions. Allowing the suit to proceed—and thereby threaten liability for relying on third-party organizations’ science-based carbon-offset certifications—would seriously undermine the sound-science gatekeeping reflected in the district court’s Order. And it would deter environmentally conscious corporations from investing millions of dollars in independently certified carbon-offset projects through the voluntary purchase of carbon-offset credits.