Greenwashing case at United Airlines dismissed by deregulation law

A civil lawsuit alleging that United Airlines used “greenwashing” to get passengers to pay higher airfares was dismissed this week by the District Court of Maryland, saying it violated the Airline Deregulation Act of 1978. Greenwashing is making unsubstantiated or unprovable claims about environmental sustainability. Alexander Zajac, who brought the case to court, claimed that United Airlines repeatedly touted its sustainable and environmentally friendly practices and flights using sustainable jet fuel, which encouraged him to book flights with the airline despite higher airfares.

Several airlines have been accused of greenwashing when they advertise flights using sustainable aviation fuel. While airlines in Europe and the UK have run into trouble with regulators over their advertisements for SAF flights, the US Airline Deregulation Act allows a different perspective on this controversial issue.

U.S. District Judge Paula Xinis found that the Airline Deregulation Act prohibits states from[ing] or enforce[ing] any law, rule, regulation, standard, or other provision having the force of law relating to the fares, routes, or services of an air carrier.” The judge also pointed to a Supreme Court ruling in a 1994 case involving American Airlines' frequent flyer program, in which the Supreme Court held that the purpose of the ADA is to “lead largely to the airlines themselves the selection and design of appropriate marketing mechanisms for the provision of air transportation services…” In addition, Xinis ruled that Congress intended the Department of Transportation to be the “sole legal check on potential advertising fraud by airlines.”

Perhaps most importantly, the judge dismissed Zajac's lawsuit against United with reservations, finding that there was no way to amend his claim without invalidating the ADA, setting a precedent that could protect U.S. airlines from the same lawsuits against their global competitors.

In April this year, the European Consumers' Association, the European Commission and EU consumer protection authorities informed 20 airlines that by promoting sustainability initiatives they faced accusations of making “potentially misleading environmental claims”, in breach of EU consumer law.

The highlighted agencies “Claims by airlines that the CO2 emissions caused by a flight could be offset through climate projects or the use of sustainable fuels, to which consumers could contribute by paying additional fees.” Several European airlines have offered various carbon offsetting plans to help them cover the higher costs of non-fossil fuel-based alternatives. European authorities are closely monitoring what they consider to be misleading claims that are not “backed by solid scientific evidence”.

Earlier this month, the UK's advertising watchdog banned a Virgin Atlantic radio advert on its transatlantic flight “Flight 100” from London Heathrow to New York JFK on November 28, 2023. The airline touted it as the world's first commercial transatlantic flight using 100% sustainable fuel. The flight was operated using a Boeing 787 with Rolls-Royce Trent 1000 engines, with no modifications to use the alternative fuel. This was a major technical milestone and demonstrated safe operations at a time when the aviation industry is working to move away from fossil fuels to reduce its carbon emissions. Nevertheless, the UK's advertising watchdog found that the advert misled consumers and overstated the environmental benefits of sustainable fuel.

While many airlines around the world are focusing on various ways to reduce their carbon footprint, it is still unclear whether they will succeed in convincing their passengers to fly more sustainably.