Recent explosive growth in environmental and climate-related marketing claims by business firms has raised concerns about the truthfulness of these claims. Critics argue (or at least question whether) such claims constitute greenwashing, which refers to a set of deceptive marketing practices in which an entity publicly misrepresents or exaggerates the positive environmental impact of a product, a service, or the entity itself. The extent to which greenwashing can be regulated consistent with the First Amendment raises thorny doctrinal questions that have bedeviled both courts and scholars. The answers to these questions have implications far beyond environmental marketing claims. This Essay is the first to offer both doctrinal clarity and a normative approach to understanding how the First Amendment should tackle issues at the nexus of science, politics, and markets. It contends that the analysis should be driven by the normative values underlying the protection of speech under the First Amendment in the disparate doctrines that govern these three arenas. When listeners are epistemically dependent for information on commercial speakers, regulation of such speech for truthfulness is consistent with the First Amendment and subject to the laxer review of the commercial speech doctrine. This is because citizens must have accurate information not only to knowledgeably participate at the ballot box but also to have meaningful freedom in economic life itself.

The full text of this Essay can be found by clicking the PDF link to the left.


Business firms and other private actors are confronting the reality that urgent action to address climate change is required, not only through pub­lic regulation but also through private environmental governance. 1 Private environmental governance defines the overarching category of environmental standard-setting and enforcement actions taken by private actors like firms, nongovernmental organizations (NGOs), and multistakeholder groups that operate in par­allel with those undertaken by public law regulators. See Sarah E. Light, The New Insider Trading: Environmental Markets Within the Firm, 34 Stan. Env’t L.J. 3, 4–5 (2015); Sarah E. Light & Eric W. Orts, Parallels in Public and Private Environmental Governance, 5 Mich. J. Env’t & Admin. L. 1, 3 (2015); Michael P. Vandenbergh, Private Environmental Governance, 99 Cornell L. Rev. 129, 133 (2013). See generally Michael P. Vandenbergh & Jonathan M. Gilligan, Beyond Politics: The Private Governance Response to Climate Change (2017) (demonstrating that private environmental governance has resulted in a reduction in global emissions and arguing its benefits for addressing climate change). To date, more than 1,500 firms globally have announced their intention to reduce their greenhouse gas emissions to net zero by 2050 in accordance with the goals of the Paris Climate Agreement. 2 Data-Driven EnviroLab & NewClimate Inst., Accelerating Net Zero: Exploring Cities, Regions, and Companies’ Pledges to Decarbonise 13 (2020),‌sites/default/files/2020/09/NewClimate_Accelerating_Net_Zero_Sept2020.pdf [https://‌]. The Paris Agreement establishes a global goal of limiting the global increase in temperature to “well below 2°C above pre-industrial levels and . . . pursu[ing] efforts to limit the temperature increase to 1.5°C above pre-industrial levels” to avoid the worst impacts of climate change. Paris Agreement to the United Nations Framework Convention on Climate Change, art. 2, Dec. 12, 2015, T.I.A.S. No. 16-1104 (entered into force Nov. 4, 2016). Many firms have publicly stated their intentions to reach “net zero” or “carbon neutral” goals with respect to their own operations and purchased electricity. 3 Thomas Murray, Net Zero Is the New Business Imperative, Env’t Def. Fund+Bus. (Sept. 24, 2020), [‌N7B9-QQ76] (noting that the “number of net zero pledges has doubled in less than a year”). Others have gone farther, promising to reach net zero with respect to the emissions arising out of their lending portfolios, upstream supply chains, or down­stream consumption of their products. 4 Data-Driven EnviroLab & NewClimate Inst., supra note 2, at 4. These climate pledges have come from a wide variety of firms, including the six largest banks in the United States; 5 Sarah E. Light & Christina P. Skinner, Banks and Climate Governance, 121 Colum. L. Rev. 1895, 1896, app. at 1952 (2021); Avery Ellfeldt, Citi Goes Net Zero. Who’s Next?, ClimateWire (Mar. 2, 2021),‌1063726339?utm_campaign=edition&utm_medium=email&utm_source=eenews%3Aclimatewire (on file with the Columbia Law Review). managers of more than $9 trillion in assets; 6 Press Release, Ceres, Leading Asset Managers Commit to Net Zero Emissions Goal With Launch of Global Initiative (Dec. 11, 2020),‌press-releases/leading-asset-managers-commit-net-zero-emissions-goal-launch-global []. technology firms like Google 7 Google Sustainability, [] (last visited Aug. 5, 2022) (pledging to be carbon-free by 2030). and Microsoft; 8 Brad Smith, Microsoft Will Be Carbon Negative by 2030, Microsoft: Off. Microsoft Blog (Jan. 16, 2020), []. consumer-facing firms like McDonald’s; 9 McDonald’s Accelerating Climate Action to Reach Net Zero Emissions by 2050, McDonald’s (Oct. 4, 2021),‌article/ [] (an­nouncing that the company is joining the UN’s “Race to Zero” campaign and the Science Based Targets Initiative’s  “Business Ambition for 1.5°C” campaign). oil and gas majors like BP 10 Press Release, BP, BP Sets Ambition for Net Zero by 2050, Fundamentally Changing Organisation to Deliver (Feb. 12, 2020), [https://‌]. and Shell; 11 Media Release, Shell, Shell Accelerates Drive for Net Zero Emissions With Customer-First Strategy (Feb. 11, 2021), []. the largest producer of aluminum in the United States, Alcoa; 12 Press Release, Alcoa, Alcoa States Its Ambition to Reach Net Zero Greenhouse Gas Emissions by 2050 (Oct. 4, 2021), []. and even a NASCAR racing team. 13 Jenna Fryer, Roush Fenway Becomes 1st Carbon Neutral NASCAR Team, ClimateWire (Feb. 19, 2021),‌1063725431?utm_campaign=edition&utm_medium=email&utm_source=eenews%3Aclimatewire (on file with the Columbia Law Review). Firms have formed or joined coalitions, like the Glasgow Financial Alliance for Net Zero, pursuant to which “over $130 trillion of private capital is committed to transforming the economy for net zero” comprising commitments by more than 450 firms in forty-five countries. 14 Press Release, Glasgow Financial Alliance for Net Zero, Amount of Finance Committed to Achieving 1.5°C Now at Scale Needed to Deliver the Transition (Nov. 3, 2021), (on file with the Columbia Law Review). One of the boldest claims in this regard is Occidental Petroleum’s recent statement that it has delivered the “world’s first shipment of ‘carbon-neutral’ oil.” 15 Carlos Anchondo, Company Claims World’s First CO2-Neutral Oil. Is That True?, EnergyWire (Feb. 3, 2021),‌1063724089?utm_campaign=edition&utm_medium=email&utm_source=eenews%3Aenergywire (on file with the Columbia Law Review); News Release, Oxy, Oxy Low Carbon Ventures, Together With Macquarie, Deliver World’s First Shipment of Carbon-Neutral Oil (Jan. 28, 2021), [] (noting that greenhouse gas emissions from the oil’s lifecycle were being offset). There has been an explosion in the growth of investment funds marketed as “green” or otherwise socially responsible. 16 Evie Liu, SEC’s Gensler Is Targeting Greenwashing of ESG Funds, Barron’s (Mar. 1, 2022), (on file with the Columbia Law Review). These public statements are not limited to climate pledges but include promises to improve environmental perfor­mance along other dimensions, such as with respect to water use; reducing waste, the use of toxic chemicals, and deforestation; and preserving biodiversity.

This exponential growth in environmental marketing claims has raised concerns about their truthfulness. Critics argue (or at least question whether) such claims constitute greenwashing. 17 See, e.g., Thomas Day, Silke Mooldijk, Sybrig Smit, Eduardo Posada, Frederic Hans, Harry Fearnehough, Aki Kachi, Carsten Warnecke, Takeshi Kuramochi & Niklas Höhne, Corporate Climate Responsibility Monitor: Assessing the Transparency and Integrity of Companies’ Emission Reduction and Net-Zero Targets 5 (2022),‌sites/default/files/2022-06/CorporateClimateResponsibilityMonitor2022.pdf [] (assessing the climate strategies and claims of twenty-five major global firms and finding that net-zero commitments reduce aggregate emissions on average by 40%, rather than 100%); Ashish Kothari, The ‘Net-Zero’ Greenwash, Meer (July 13, 2021), [‌B4VX-UPWG] (suggesting that “net zero” is just hiding business-as-usual strategies); Joel Makower, Is ‘Net-Zero’ Greenwash?, Greenbiz (Nov. 17, 2020),‌article/net-zero-greenwash (on file with the Columbia Law Review) (questioning the integrity of net-zero commitments and identifying ways in which firms can hedge their pledges); Tim Quinson, Al Gore Warns Greenwashing May Stop the Climate Fight in Its Tracks, Bloomberg (July 13, 2021), (on file with the Columbia Law Review) (noting former Vice President Al Gore’s concern that greenwashing can undermine progress in addressing the climate emergency). Greenwashing generally refers to a set of deceptive marketing practices in which an entity publicly misrepresents or exaggerates the positive environmental impact or attrib­utes of a product or service to create a favorable impression that is not supported by evidence (product-level claims), or in which an entity mis­represents the entity’s overall impact on the environment (firm-level claims). 18 Miriam A. Cherry & Judd F. Sneirson, Beyond Profit: Rethinking Corporate Social Responsibility and Greenwashing After the BP Oil Disaster, 85 Tul. L. Rev. 983, 985 (2011) (defining greenwashing as the use of environmental rhetoric without actual commitment); Magali A. Delmas & Vanessa Cuerel Burbano, The Drivers of Greenwashing, 54 Cal. Mgmt. Rev. 64, 65 (2011) (defining greenwashing as “the intersection of two firm behaviors: poor environmental performance and positive communication about environmental perfor­mance”); William S. Laufer, Social Accountability and Corporate Greenwashing, 43 J. Bus. Ethics 253, 253 (2003) (defining greenwashing as a “form[] of disinformation from organ­izations seeking to repair public reputations and further shape public images”). In litigation against ExxonMobil, the Commonwealth of Massachusetts focused on how companies employ greenwashing to induce consumers to purchase their products. Massachusetts v. ExxonMobil Corp., 462 F. Supp. 3d 31, 37 (2020). Some have distinguished greenwashing from “environmental fraud.” See Eric W. Orts & Paula C. Murray, Environmental Disclosure and Evidentiary Privilege, 1997 U. Ill. L. Rev. 1, 7, 49 (defining environmental fraud as “[f]ailure to disclose legal violations found through [environmental] auditing in public re­ports” and arguing that it should be subject to harsher penalties than other false or misleading statements made in environmental reports). While common law findings of lia­bility for past misleading statements about firms’ own knowledge are outside of the direct scope of this Essay, such claims would be subject to the same First Amendment values and doctrines articulated here. See generally N.Y. Times v. Sullivan, 376 U.S. 254, 279–83 (1964) (applying First Amendment limits to defamation cases brought against public officials). For this Essay’s taxonomy of greenwashing, see infra Part I. Importantly, the term “greenwashing” is a broad descriptor, not a legal term of art like “fraud” or “negligence.” Whether different types of claims about environmental performance or intentions that might be described as greenwashing are “false” or “misleading” has significant First Amendment implications—implications that bear on whether such claims are protected speech or can be legally regulated for truthfulness.

Accusations of greenwashing have bedeviled firms with respect to their marketing of specific products, with some claims rising to the level of legal action. 19 For a discussion of the legal enforcement mechanisms available to combat greenwashing, see infra Part II. Procter & Gamble faced claims of greenwashing when it ad­vertised a brand of paper towel as containing recycled material when in fact only the inner cardboard tube contained recycled fibers. 20 Jill Meredith Ginsberg & Paul N. Bloom, Choosing the Right Green Marketing Strategy, 46 Mass. Inst. Tech. Sloan Mgmt. Rev. 79, 79 (2004) (mentioning the Procter & Gamble case). Firms have faced class action lawsuits under state consumer protection laws, such as one suit against a cookware company based on its claims that its pots and pans were “toxin free” and “good for the environment” when they alleg­edly contained “compounds that are known to be toxic.” 21 Class Action Complaint & Demand for Jury Trial paras. 4–5, Saldivar v. Cookware Co., No. 19-cv-06014-JST (N.D. Cal. filed Sept. 25, 2019) (emphasis omitted). Others have faced lawsuits alleging false and deceptive advertising based on advertise­ments that cleaning products were “non-toxic” and “earth friendly” when they allegedly contained ingredients that were harmful to people, animals, and the environment. 22 See Bush v. Rust-Oleum Corp., No. 20-cv-03268-LB, 2021 WL 24842, at *1, *6 (N.D. Cal. Jan. 4, 2021) (denying motion to dismiss claims that Rust-Oleum misrepresented Krud Kutter as “non-toxic” and “earth friendly” when the products were alleged to harm humans, animals, and the environment); Companies Accused of Greenwashing (Apr. 22, 2022), [https://​​2ATT-ME35] (last updated June 28, 2022) (listing other companies accused of falsely marketing their products). And greenwashing claims surrounded the infa­mous Keurig coffee pods, based on Keurig’s claims that the pods were recyclable when a substantial number of nationwide recycling facilities would not actually accept them for recycling. 23 See Smith v. Keurig Green Mountain, Inc., No. 18-cv-06690-HSG, 2020 WL 5630051, at *1, *3 (N.D. Cal. Sept. 21, 2020) (granting motion for class certification under California law as to whether claim that Keurig’s K-Cups were “recyclable” was deceptive). Despite greenwashing’s broad definition, which encompasses both product- and firm-level claims, much of the focus to date—at least when it comes to litigation—has been on product-level claims. 24 Entities other than business firms can engage in greenwashing. Frances Bowen, After Greenwashing: Symbolic Corporate Environmentalism and Society 3 (2014) (arguing that greenwashing can occur at the firm or product level); Thomas P. Lyon & A. Wren Montgomery, The Means and Ends of Greenwash, 28 Org. & Env’t 223, 225 (2015) (noting that NGOs and governments can engage in greenwashing and in fact “may often serve as partners in corporate greenwashing”). The focus here, however, is on consumer-oriented claims in the marketplace, and thus this Essay focuses exclusively on business firms.

The issue of greenwashing is taking a broader turn, however, with much higher stakes. In March 2021, three environmental organizations filed a complaint with the Federal Trade Commission (the FTC or the “Commission”), the federal agency charged with enforcing laws that pro­hibit false and deceptive claims in advertising. 25 See infra Part II. The complaint contends that the fossil fuel firm Chevron has engaged in greenwashing by overstat­ing and misrepresenting the firm’s overall efforts to reduce emissions of greenhouse gases and increase its investments in renewable energy. 26 Myles McCormick, Chevron Accused of ‘Greenwashing’ in Complaint Lodged With FTC, Fin. Times (Mar. 16, 2021), (on file with the Columbia Law Review); Corey Paul, Environmental Groups Accuse Chevron of ‘Greenwashing’ in FTC Complaint, S&P Glob. Mkt. Intel. (Mar. 16, 2021), []. This is the first complaint filed with the Commission invoking the Commission’s “Green Guides” to claim that a firm has misled consumers about how it markets its overall climate strategy and the environmental impact of its operations, rather than merely a complaint about the marketing of a specific product or service. 27 Paul, supra note 26.

Why does this matter? At a basic level, whether the law can regulate firms’ green marketing claims for truthfulness has material implications for whether, collectively, humanity can keep global emissions below a threshold to avoid the worst impacts of climate change. Misleading and deceptive claims about emissions reductions and climate-friendly business strategies can muddy the waters of what firms are actually doing to address climate change. Consumers and investors, who are often information de­pendent upon firms to shed light on their practices and strategies, may be misled into taking actions within the marketplace that are inconsistent with achieving either personal or societal climate goals. And they may not demand the political action they might, were they to know more clearly what the private sector is (or is not) doing to mitigate climate change. The primary motivating question of this Essay is therefore the extent to which the First Amendment permits regulation of firms’ environmental claims for truthfulness.

Under this Essay’s analysis, a broader set of green marketing claims can be constitutionally regulated for truthfulness and a broader set of statements by business firms should be treated with relaxed constitutional scrutiny than current doctrine arguably envisions. This is for two reasons. First, many forms of greenwashing—namely those that are false or mislead­ing, or which provide information that informs consumers’ political choices—are subject to either no First Amendment coverage or the reduced scrutiny of the commercial speech doctrine under current law. Since the 1990s, however, established law has been increasingly under­mined and contested, as litigants have sought to—and some courts have agreed to—transform the First Amendment into an all-purpose deregula­tory tool in what many have described as First Amendment Lochnerism or New Lochnerism. 28 There is a large literature describing First Amendment Lochnerism. Amanda Shanor, First Amendment Coverage, 93 N.Y.U. L. Rev. 318, 331 n.57 (2018) [hereinafter Shanor, First Amendment Coverage] (collecting citations); Amanda Shanor, The New Lochner, 2016 Wis. L. Rev. 133, 182–91 [hereinafter Shanor, The New Lochner] (analyzing the parallels and differences between modern commercial speech doctrine and Lochner v. New York, 198 U.S. 45 (1905), and concluding that the First Amendment has the potential to serve as an even more powerful deregulatory tool than did the liberty of contract announced in Lochner). This Essay pushes back against that deregulatory effort. Second, both pre-New Lochnerism commercial speech law and the dereg­ulatory view that now challenges it fail to offer a coherent view of the freedom of speech or the forms of democracy it advances. This Essay thus breaks new ground in offering a new theory of the purposes of the freedom of speech in economic life.

In making this argument, this Essay begins by explaining that courts addressing speech rights in these contexts have, to date, produced notori­ously confusing and inconsistent First Amendment case law. The root of that confusion is that speech at the juncture of politics, markets, and sci­ence also sits at the intersection of three quite disparate First Amendment doctrines: the First Amendment principles that apply to speech in public discourse (politics), the commercial speech doctrine and related doctrines that generally apply to expression in economic life (markets), and free speech doctrines around expertise and knowledge production (science). 29 See Robert Post, Compelled Commercial Speech, 117 W. Va. L. Rev. 867, 871–72 (2015) [hereinafter Post, Compelled Commercial Speech] (“[T]he Constitution values dif­ferent kinds of speech for different reasons. First Amendment doctrine protects each distinct kind of speech in a manner appropriate for safeguarding its particular kind of constitutional value.”). These contrasting doctrines reflect distinct constitutional values, constitu­tionally relevant institutional differences, and varying approaches to the production of information, individual choice, and truth and falsity.

Ultimately, this Essay does not simply apply existing First Amendment speech doctrine to green marketing claims. Instead, it evaluates and re­conceives the purposes of the First Amendment regarding expression at the juncture of politics and markets. It argues that the values underlying the freedom of speech are to protect decisional and participatory liberty in both political and economic life. The purpose of the First Amendment in both settings, it contends, is to advance a deep form of participatory democracy. This theory provides needed explanatory support for First Amendment doctrine that predates the New Lochnerism and goes beyond it to advance a holistic understanding of the purposes of the freedom of speech at this intersection.

While seeds of this understanding of the First Amendment are present both in canonical commercial speech cases and in the broader pattern of First Amendment coverage, 30 See infra Part III. the notion that the freedom of speech does and should advance democratic norms in economic life has been largely ignored. The principal self-government theories of the First Amendment understand democracy as voice in government. This Essay argues that this conception of governance unduly limits the scope of de­mocracy and depends on a questionable division between the political and the commercial. Instead, it adopts a more capacious notion of democratic participation and recognizes that there is no clear ex ante philosophical boundary between speech that is “commercial” (and thus subject to regu­lation for truthfulness) or “political” (and thus presumptively not subject to such regulation). It argues that by looking at the normative values ani­mating these different doctrines and the sorts of social relationships they seek to regulate and produce, we can ask more tractable questions.

This Essay delves into the case of greenwashing because it highlights the underlying core values that the First Amendment aims to protect, which is where any assessment of First Amendment doctrine should begin. This focus on underlying values—to protect decisional and participatory liberty in both political life and the marketplace, especially in cases of informational asymmetry—yields the conclusion that more green market­ing claims ought to be subject to regulation for truthfulness than are un­der the current doctrinal morass. This new theoretical lens will not only clarify the First Amendment status of greenwashing (and the regulations that seek to address it) but also provide a conception of the First Amendment that advances democracy in a more thoroughgoing way.

The Essay proceeds in five parts. Part I provides the key features of greenwashing as a broad concept, and Part II elaborates the regulatory authority of government actors like the FTC and the states to address com­mercial speech that is false, deceptive, or misleading. Part III details the First Amendment terrain in which greenwashing is situated and provides a typology of the relevant constitutional considerations that should inform the application of differing First Amendment rules. Part IV then brings these frameworks together and offers a path forward. It advances a new theory of the First Amendment contexts, values, and considerations that should inform the application of differing constitutional rules. Part V merges these inquiries to offer implications of this analysis for the varying forms of greenwashing the Essay identifies and provides some suggestions about solutions. In so doing, this Essay offers clarity for those addressing the increasingly important constitutional questions at the intersection of politics, science, and markets.