United Airlines Greenwashing Case Dismissed By Deregulation Act

A civil suit which alleged United Airlines had used ‘greenwashing’ to lure passengers into paying higher fares was dismissed in the District Court of Maryland this week because it would preempt the Airline Deregulation Act of 1978. Greenwashing involves unfounded or unprovable claims of environmental sustainability. Alexander Zajac, who brought the case to court, claimed that United Airlines had repeatedly advertised its sustainable and green practices, and sustainable aviation fuel flights, which encouraged him to book flights with the airline despite higher fares.

A number of airlines have been accused of greenwashing when advertising flights operated using sustainable aviation fuel. While carriers in Europe and the UK have found themselves running afoul of regulators for their SAF flights ads, the U.S. Airline Deregulation Act enables a different take on this contentious issueForbes
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United Airlines Greenwashing Case Dismissed By Deregulation Act
Marisa Garcia
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Aug 16, 2024,05:49am EDT
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A civil suit which alleged United Airlines had used ‘greenwashing’ to lure passengers into paying higher fares was dismissed in the District Court of Maryland this week because it would preempt the Airline Deregulation Act of 1978. Greenwashing involves unfounded or unprovable claims of environmental sustainability. Alexander Zajac, who brought the case to court, claimed that United Airlines had repeatedly advertised its sustainable and green practices, and sustainable aviation fuel flights, which encouraged him to book flights with the airline despite higher fares.

A number of airlines have been accused of greenwashing when advertising flights operated using sustainable aviation fuel. While carriers in Europe and the UK have found themselves running afoul of regulators for their SAF flights ads, the U.S. Airline Deregulation Act enables a different take on this contentious issue.

US District Judge Paula Xinis found that Airline Deregulation Act prohibits states from “enact[ing] or enforc[ing] any law, rule, regulation, standard, or other provision having the force and effect of law relating to rates, routes, or services of any air carrier.” The judge also referenced a Supreme Court ruling on a 1994 case involving American Airlines’ frequent flyer program where the Supreme Court determined the ADA’s purpose is to “leave largely to the airlines themselves . . . the selection and design of marketing mechanisms appropriate to the furnishing of air transportation services.” Additionally, Xinis ruled that Congress intended the Department of Transportation “to be the sole legal control on possible advertising fraud by air carriers.”

Perhaps most importantly, the judge dismissed Zajac’s case against United with prejudice, determining there was no way in which he might amend his claim which would not preempt the ADA. This sets a precedent which could make U.S. carriers immune from the same claims filed against their global competitors.This April, the European Consumer Organisation, the European Commission and EU Consumer Protection Cooperation Authorities notified 20 airlines their advertising of sustainability initiatives could make them susceptible to charges of “potentially misleading green claims” in violation of EU consumer law.

The agencies highlighted “claims made by airlines that the CO2 emissions caused by a flight could be offset by climate projects or through the use of sustainable fuels, to which the consumers could contribute by paying additional fees.” A number of European carriers have offered different carbon offset plans which help them cover the higher costs of non-fossil fuels alternatives. European authorities are closely monitoring what they view as misleading claims not “substantiated based on sound scientific evidence.”

Earlier this month, the UK’s Advertising Standards Authority banned a Virgin Atlantic radio advertisement on its “Flight 100” transatlantic flight from London Heathrow to New York JFK on 28 November 2023. The airline has touted it as the world’s first commercial flight crossing the Atlantic on 100% SAF. The flight operated on a Boeing 787, using Rolls-Royce Trent 1000 engines, with no modifications made to fly using the alternative fuel. It was a major engineering milestone, proving safe operations as the aviation industry works to shift away from fossil-fuels to reduce its carbon emissions. Still, the UK’s ASA determined the ad mislead consumers and overstated the environmental benefits of SAF.

While many airlines around the world have focused on different ways to reduce their carbon footprint, whether they will succeed in persuading passengers that they are flying more sustainably is still up in the air.

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