Last week, the Environmental Working Group (“EWG”) filed a lawsuit against Tyson Foods in DC Superior Court under the DC Consumer Protection Procedures Act (“CPPA”), accusing the country’s second-largest meat company of falsely claiming it will be net-zero by 2050 and misrepresenting its industrial beef products as “climate-smart.” (The first-largest meat company is already facing a lawsuit over similar claims.) This comes just a few weeks after the DC Court of Appeals allowed a lawsuit against Coca-Cola under the CPPA over its forward-looking environmental claims to proceed.

Tyson has acknowledged that beef production results in significant greenhouse gas (“GHG”) emissions and in 2021, the company set out on a path to achieve net zero emissions across their global operations and supply chain by 2050, which included investing $42 million in promoting the adoption of climate-smart practices. EWG doesn’t think that’s possible, given that Tyson’s “GHG emissions are greater than those of entire industrialized countries, including Austria, Belgium, Greece, or New Zealand.” Further, while $42 million is a significant investment, it represents only 0.08 percent of Tyson’s revenue and a fraction of what it spends on advertising. Achieving its goals would require “radical changes to the company’s production systems and products,” which, according to EWG, “Tyson is neither planning nor willing to do.”

Further, EWG rebukes Tyson’s claims that its industrial beef is “climate-smart,” saying that this term is not defined, there’s no baseline for comparison, and Tyson does not disclose how it is measuring alleged GHG reductions. Indeed, according to EWG, “given the staggering climate footprint of Tyson’s beef, even if Tyson were to reduce emissions from a portion of its beef products by 10 or even 30 percent, it would still not be a ‘climate-smart’ choice for consumers, any more than reducing the tobacco content of cigarettes by 10 percent would render that product ‘kid-friendly’ or ‘healthier.’”

EWG argues that Tyson doesn’t have a plan to reach its climate goals and that – even if it did have a plan – that plan is destined to fail because “there is no proven or anticipated way to do so at Tyson’s current enormous scale of production, and the offsets required to zero out Tyson’s meat production emissions are both unfathomable and unavailable.” This mirrors arguments the New York Attorney General made in its lawsuit against JBS over its net zero claims. The AG doesn’t think JBS can achieve its goals.

Had this case been filed a year ago, Tyson might have faced an easier challenge because, in 2022, the DC Superior Court held that future aspirational goals “cannot successfully create a valid claim under the CPPA until they have been found to be inaccurate or misleading.” Things have changed since then.

Earlier this month, the DC Court of Appeals reversed that decision, holding that “even aspirational statements can be actionable under the CPPA because they can convey to reasonable consumers that a speaker is taking (or intends to take) steps that at least have the potential of fulfilling those aspirations.” One question in this case will likely be whether or not Tyson has taken sufficient steps that have the potential of achieving its net zero goal by 2050 and whether its plan will get it the rest of the way there.

Although Tyson hasn’t responded yet, we know from their 2022 sustainability report that it has at least started to engage in “preparatory work” to achieve the goal, including developing “a GHG emissions accounting framework for beef to model emissions and verify emission reductions from pasture to production through supply chain partners’ adoption of more sustainable agricultural practices.” Given what we saw in the JBS lawsuit and the NAD decision before it, it’s not clear whether that will be enough.

As we noted in our recent article, these types of lawsuits present companies with a difficult question: how much progress does a company have to make towards a goal before it can communicate that goal in ads or ESG reports without worrying that consumers may feel misled? Unfortunately, that question doesn’t have a clear answer, and it may need to be decided by a jury. This is likely to result in “greenhushing,” as companies decide to stay quiet about their goals in order to reduce their risk of litigation.

Until we have better answers, companies will want to proceed with caution when making claims about climate-related goals and targets.

Tyson Faces Lawsuit Over Net Zero Claims