Court Dismisses New York Attorney General's Lawsuit Over "Net Zero" Claims

About a year ago, the New York Attorney General sued JBS Food Company and JBS USA Food Company Holdings (together, “JBS”) in New York State court for false advertising, alleging that JBS misled consumers about the environmental impact of the meat that JBS produces.  The main focus of the lawsuit was a claim by JBS that it will be “Net Zero by 2040.”  

The NYAG alleged that JBS's claim that it will be “Net Zero by 2040” is false and misleading because the company failed to fully take into account its "scope 3" emissions. The NYAG also charged that JBS's “Net Zero by 2040” claim is false and misleading because of the company's current levels of production and its plans to dramatically increase production.  As the NYAG put it, JBS has "no viable plan to meet its commitment to be “Net Zero by 2040.”

JBS moved to dismiss.  During oral argument on the motion, the court granted the motion with leave to replead, provided that the NYAG files an amended complaint within 90 days. 

Why did the court dismiss the case?  

First, the court wasn't convinced that the NYAG had sufficiently alleged that JBS had made claims that were sufficiently specific which would lead consumers to believe that the company was actually committing to achieve net zero by 2040 – particularly after JBS had revised its advertising to remove language that it was “committing” to achieve that results.  The court explained, “what's not clear to me, and perhaps requires additional clarity, is your now-argument that the reasonable consumer would still read the language to expect a particular result under the circumstances.” 

Second, the court expressed serious concerns that aspirational claims – that didn't promise specific results –- were actionable under New York law.  The court asked, “Are you saying to me that a company who says we are – we have an ambition to achieve a goal in the future if they're taking some steps or spending a billion dollars, we're not going to do this, we're not going to do that, we're not going to do the other thing, but we don't know exactly how we're going to get there yet, are you saying with that language we have an ambition to get there, that that's actionable under the statute?”