Climate is the religion; Net Zero is the First Commandment; greenwashing is the unpardonable sin.

New York v. JBS USA Food Company and JBS USA Food Holdings is a perfect example of how greenwashing can get your company into serious trouble.

JBS USA is the American subsidiary of the world’s biggest meat processor, JBS. Based in Brazil, JBS conducts business in more than 20 countries on five continents. Its 2022 revenues were reported as US $72.6 billion.

The alleged crime and its scope

Although the court filing (para 44) claims "personal jurisdiction over JBS USA", numerous references to JBS operations outside of the US raise questions about what the true jurisdiction will in effect be when all is said and done.

Potentially, then, the jurisdiction of the Supreme Court of New York State will expand and become international. This possibility is reinforced when the court filing states, “Those supply chain emissions include emissions from deforestation in the Amazon” in para 8. Will JBS USA be held accountable for the actions of JBS in other countries? Only time will tell.

The court filing defines the misdeed:

1. Across its marketing materials, the JBS Group has made sweeping representations to consumers about its commitment to reducing its greenhouse gas emissions, claiming that it will be “Net Zero by 2040.”
2. The JBS Group, however, has had no viable plan to meet its commitment to be “Net Zero by 2040.”

Para. 3 gives us the motive: 

One study found that consumers are willing to pay more—up to 30 percent more—for products with net-zero greenhouse gas emissions. Consumers also report that sustainability is an important consideration when purchasing food and beverages in a grocery store or restaurant.

To sum up: JBS Group allegedly lied about its intention to achieve Net Zero by 2040 so that it could dupe environmentally conscious consumers into buying its products. That’s greenwashing. The possibility that JBS products were purchased at a premium makes things worse and must have enraged those who view greenwashing as something truly repugnant.

It gets more interesting: “9. Even if it had developed a plan to be ‘Net Zero by 2040’, the JBS Group could not feasibly meet its pledge because there are no proven agricultural practices to reduce its greenhouse gas emissions to net zero at the JBS Group’s current scale, and offsetting those emissions would be a costly undertaking of an unprecedented degree.”

In other words, this lawsuit punishes JBS for not doing what JBS couldn’t do if it wanted to remain in business. What an astonishing admission! In effect, this lawsuit is a direct attack on the very existence of meat production, at least on the scale of JBS.

This is not completely unprecedented. Canadian farming operations are subject to a carbon tax, thanks to the Justin Trudeau government. Many essential farm practices such as grain drying have no alternative fuel to natural gas or propane. Consequently, farmers are in effect being fined for normal farm operations required to produce food. That’s what it boils down to.

Judgement sought:

1. The State therefore brings this action pursuant to Executive Law § 63(12) to stop these fraudulent and illegal environmental marketing practices and to enjoin JBS USA from violating New York’s consumer protection statutes, General Business Law §§ 349 and 350.
2. The State also seeks an order awarding civil penalties for JBS USA’s statutory violations; disgorgement of all profits and ill-gotten gains realized from JBS USA’s violations of New York’s consumer protection statutes; a third-party audit of JBS USA’s compliance with New York’s consumer protection statutes; and such other relief as the Court deems just and proper.

A link to the Trump prosecution

Does Executive Law § 63(12) sound familiar perhaps? It would be if you follow US presidential politics or operate a business in the State of New York. It states:

The word “fraud” or “fraudulent” as used herein shall include any device, scheme or artifice to defraud and any deception, misrepresentation, concealment, suppression, false pretense, false promise or unconscionable contractual provision. (para 12).

It’s the law that was used to secure a conviction against Donald Trump in a non-jury trial by Justice Engoron in February 2024. More about this later.

The lawsuit against JBS Group isn’t Ms James’ first attack on a business with a large carbon footprint. In 2019, she lost a case against Exxon Mobile. According to this CBC report:

Justice Barry Ostrager in the Manhattan Supreme Court ruled the state attorney general failed to produce any evidence that investors were misled. The case, filed in October 2018, was the first of several climate change lawsuits against major oil companies to go to trial.

The lawsuit by the office of New York state attorney general Letitia James said that Exxon Mobil caused investors to lose up to $1.6 billion US by falsely telling them it had properly evaluated the impact of future climate regulations on its business.

You can be sure that Ms James will not make the same mistake again.

In contrast to New York, Canada’s Bill C-59 made changes to the Competition Act, some of which explicitly made greenwashing illegal:

The changes also tackle unsupported environmental claims, commonly known as greenwashing, by:

• Requiring that claims about the environmental benefits of a product be supported by adequate and proper testing.
• Requiring that claims about the environmental benefits of a business or business activity be based on adequate and proper substantiation in accordance with an internationally recognized methodology.

To avoid being hauled into court over alleged greenwashing, some Canadian oil and gas groups, such as Pathways Alliance, deleted from their websites and social media feeds any content related to their work towards achieving Net Zero. 

Since the lawsuit against JBS Group is being driven by the personal politics of New York Attorney General Letitia James, let’s take a quick look at that.