Hundreds of new greenwashing-related court cases have increased the pressure on PR and advertising agencies, as prosecutors begin to widen their net in terms of who should bear responsibility for the controversial practice.
The report, ‘Smoke and Mirrors: The legal risks of fossil fuel advertising’, was compiled by activist climate-change organisation Clean Creatives. It says at least 1,400 cases are ongoing and numbers continue to rise. Since May 2021, 369 climate-related lawsuits against agencies have been concluded, with 218 of those (58 per cent) ruling against the PR and advertising firms.
It also says more cases (191) were filed during 2020 than the years 2015 to 2019 combined (170), showing a “significant rise in the number of new filings”. Over the past five years the number of lawsuits relating to the role of PR and advertising in climate change has doubled. The cases are mainly US-based, but span 39 countries in total.
The report names WPP, IPG, Dentsu, Publicis and Omnicom, the holding companies which operate dozens of individual PR and advertising agencies, as particularly vulnerable because they all “currently work with fossil fuel clients to improve their public image and reputation while they continue to pollute the Earth.”
Clean Creatives director Duncan Meisel said PR and advertising agencies are taking “significant reputational, business and legal risks when they work with fossil fuel companies to spread climate disinformation. This report is a reminder that this work isn’t just hurting the planet, you could end up in court.”
Meisel also warned agencies against being misled themselves. “Many agencies may not even be aware of the extent to which their clients are withholding information from them which could lead to legal action.
“We may believe we are changing the industry, when in fact, we are unknowingly peddling misinformation. Agencies are not immune against litigation – public interest may supersede contractual arrangements with fossil fuel companies. Working with clients that cause harm can seriously cost you.”
He added most of the existing lawsuits aren’t even seeking fines but involve business risks in the form of “embarrassing discovery processes, unflattering news cycles and future need for expensive and time-consuming legal reviews”.
Nonetheless, a recent lawsuit involving McKinsey & Company indicates the potential fiscal penalties PR firms could face, and how prosecutors have shifted gear from solely targeting businesses for running misleading campaigns that could endanger public health to include third-party agencies advising them on how to do it.
In February 2021, McKinsey & Company, a management consultancy, settled a case for $573m over marketing advice it gave to manufacturers of opiate-based pharmaceuticals, including the Oxycontin brand. The New York Times described it as a “rare instance of it being held publicly accountable for its work with clients”.
There are no direct parallels between opiates and fossil fuels, but marketing services are a common denominator. Lauren Papenhausen, a partner at White & Case, said the McKinsey settlement is “particularly noteworthy in that it signals a willingness on the part of the government to pursue not only manufacturers, but also those who provide them professional services. While one might view the settlement as unique to the particular context of opioids, it raises the question of whether governmental concern over particular marketing strategies is a sign of enforcement efforts to come.”
More recently, California’s attorney general, Rob Bonta, issued a subpoena to ExxonMobil on 29 April, alleging it had used an “aggressive and deceptive marketing and advertising campaign” over the efficacy of recycling plastic. He said his investigation will “focus on this half-century campaign of deception and the ongoing harm caused to the State of California, its residents, and its natural resources” and “target companies that have caused and exacerbated the global plastics pollution crisis, their role in perpetuating myths around recycling, and the extent to which this deception is still ongoing”.
ExxonMobil called the allegations “meritless” and said they were a distraction from the “important collaborative work” it does with governments around the world.
Carroll Muffett, president of the Centre for International Environmental Law, likened the situation to the backlash against tobacco. “As with tobacco companies before them, fossil fuel producers have relied on a network of PR and advertising to perpetuate this deception. These greenwashing efforts remain active, ongoing and well-funded, but they no longer remain a secret. As fossil fuel companies face mounting litigation, creative professionals may be asking whether they’re next. And if they’re not, they should be.”
Kassie Siegel, director of the Centre for Biological Diversity’s Climate Law Institute, said fossil fuel executives are “increasingly facing the heat for their decades of lies and disastrous obstruction of climate progress”. She added that anyone running “deception” campaigns should “drop these clients now or be next in line for the legal and reputational consequences”.
In response to the contents of the report, a WPP spokeswoman told PRWeek: “Our clients have an important role to play in the transition to a low carbon economy, and how they communicate their actions must be accurate.
“We apply rigorous standards to the content we produce for our clients and seek to fairly represent their environmental commitments and investments. We will not take on any client or work whose objective is to frustrate the policies required by the Paris Agreement."
IPG, Dentsu, Publicis and Omnicom did not comment.