With New Lawsuits Against VW Greenwashing Focus Shifts to Consumers

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Previous posts (here and here) discussed the Volkswagen emissions scandal in which the German automaker intentionally programmed a number of its diesel vehicles to activate emissions controls only during testing.

The vehicles’ software allowed the nitrogen oxide (NOx) output to satisfy U.S. emissions standards during testing while producing much higher emissions during actual driving conditions.

A few months ago, the U.S. Department of Justice (DOJ) filed a civil complaint against Volkswagen seeking injunctive relief and monetary penalties for the German automaker’s actions.  That lawsuit was filed at the request of the U.S. Environmental Protection Agency (EPA) and focused on the deception around the government testing.

Recently, the Federal Trade Commission (FTC), the U.S. government’s consumer protection and competition watchdog, sued Volkswagen on behalf of American consumers for false advertising in connection with the emissions scandal.  According to the complaint, the FTC brought this action:

…in connection with Defendant’s false advertising that its “Clean Diesel” vehicles had low emissions, complied with state and federal emissions standards, were environmentally friendly, and retained a high resale value.

The complaint details VW’s extensive advertising campaign directed at “progressive and “environmentally-conscious” consumers touting “diesel’s environmental and economic advantages.”  This advertising including a Super Bowl ad and other nationally-televised spots, a social media campaign, print advertising,and other marketing statements such as:

  • print advertising including the slogan “Diesel – It’s No Longer A Dirty Word”
  • a 2009 promotional mailer claiming the Jetta TDI Clean Diesel engine is “designed to reduce emissions”
  • a press release for the 2014 Touareg stating that the “deNOx diesel converter . . . helps reduce NOx emissions by up to 90 per cent”

The FTC alleges that VW’s marketing strategy materials indicated that one of the “key messages” it intended to convey through the word “clean” was that its “Clean Diesel” vehicles produce “NOx emissions [that are] reduced by 95 percent[.]”

Furthermore, according to the complaint, VW’s advertisements and marketing materials also falsely claimed that its vehicles complied with state and federal emissions standards.  Some of those materials included statements such as “Clean Diesel” vehicles “meet the strictest EPA standards in the U.S.”

Additional advertising claims at issue included statements that the vehicles are “environmentally-conscious,” “eco-conscious,” or “green” and that the “Clean Diesel” vehicles would have a higher resale value than comparable gasoline vehicles.

Among other causes of action, the FTC alleges that these and other advertising and marketing statements constitute unfair or deceptive practices in violation of Section 5(a) of the FTC Act that have caused substantial injury to consumers, who have “spent billions purchasing or leasing” VW vehicles.

The FTC is requesting that the court enter a permanent injunction to prevent future violations and other equitable relief to refund the monies paid by consumers for the vehicles at issue.

In addition to the feds, the states are starting to get involved as well.  The attorney general of Kentucky filed a similar false advertising lawsuit against VW, alleging violations of the state’s Consumer Protection Act (see story here).

 

Eric Lane Avatar

Eric Lane

Eric Lane, the founder and principal of Green Patent Law, is an intellectual property lawyer and registered U.S. patent attorney in New York and is a member of the bar in New York and California. Eric has more than two decades of experience working with wind, solar PV, CSP, biofuels, and geothermal, energy storage technologies, carbon capture and sequestration, medical devices, data communications, mechanical, chemical, internet and software.