
United States of America
Antitrust (Competition) Law and Climate Change

This section was last reviewed in August 2024.
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Introduction
The intersection of antitrust law and climate change stands as a crucial frontier in shaping a sustainable global economy. As the world urgently seeks environmentally responsible business practices, the synergy between antitrust principles and climate change initiatives becomes evident, prompting key questions about market dynamics, innovation, collaboration, and regulatory frameworks. Examining federal-level policy considerations, it is apparent that the Sherman Antitrust Act and the Federal Trade Commission Act provide no exemptions for climate-related activities, fostering a cautious approach due to antitrust concerns. Notably, collaborations addressing climate change, despite good intentions, risk running afoul of antitrust laws, resulting in a chilling effect on participation. State-level policy variations, such as “safe harbor” rules, provide eco-friendly solutions but highlight the need for harmonization.
Sustainability agreements, merger control considerations, carbon pricing mechanisms, and consumer protection through the FTC’s Green Guides further complicate the landscape. Antitrust law emerges as a vital tool to achieve green objectives, promoting innovation, preventing anticompetitive practices, and ensuring fair market access for sustainable businesses. Future trends anticipate increased scrutiny on corporations’ environmental impact and a potential push for safe harbors within antitrust regimes, striking a balance between competition enforcement and the imperative to combat climate change.
- Antitrust Challenges: Antitrust rules, exemplified by the Sherman Antitrust Act and FTC Act, present challenges as they provide no exemptions for climate-related activities, leading to a cautious approach.
- State-Level Variances: While federal regulations pose obstacles, state-level “safe harbor” rules, such as those in Texas and New York, offer eco-friendly solutions, showcasing policy variations.
- Sustainability Agreement Balancing Act: Businesses engaging in sustainability agreements must navigate antitrust laws, avoiding actions that violate core antitrust principles, ensuring fair competition.
- Merging for Sustainability: Antitrust considerations in mergers extend to Environmental, Social, and Governance (ESG) policies, with potential amendments in disclosures, emphasizing a growing link between competition and sustainability.
- Carbon Pricing Evolution: Carbon pricing, through mechanisms like carbon taxes and cap-and-trade, impacts industries, with legislative proposals such as the Clean Competition Act suggesting an evolving approach to align environmental and economic considerations.
- Consumer Protection Landscape: The Green Guides, shaping environmental marketing claims since 1992, underscore the need for substantiating green assertions, with enforcement actions ensuring consumer trust and providing a foundation for private litigation.
- Antitrust as a Green Catalyst: Antitrust law not only prevents anticompetitive practices but acts as a catalyst for green innovation and technologies, facilitates collaborations on sustainable solutions, ensures fair market access, empowers consumers for sustainable choices, benefits for consumers, and incorporates environmental considerations in merger reviews, collectively contributing to the broader objective of addressing climate change.
General Impacts
The intersection of antitrust law and climate change represents a dynamic and critical frontier in the pursuit of a sustainable global economy. Antitrust, designed to foster fair competition and prevent monopolistic practices, is increasingly recognized as a pivotal tool in addressing the complex challenges posed by climate change. As the world confronts the urgent need for environmentally responsible business practices and the development of sustainable industries, the synergy between antitrust principles and climate change initiatives becomes evident. This convergence raises key questions about market dynamics, innovation, collaboration, and regulatory frameworks, underscoring the imperative to harmonize competition policies with the imperative to combat climate change. This exploration delves into the nuanced relationship between antitrust principles and climate change, navigating the intricate landscape where economic competition and environmental stewardship converge to shape the future of industry and sustainability.
Antitrust Rules and Federal Level Policy Considerations
The main regulations governing the antitrust concerns are the Sherman Antitrust Act of 1890 (the “Sherman Act”) and Federal Trade Commission Act of 1914 (the FTC Act). Both acts provide no exemptions for group activities and commitments to address climate change or ESG related matters. What is more, the main bodies in charge of adopting anticompetitive measures and policies Department of Justice (DoJ) and Federal Trade Commission (FTC)[1] each confirmed that there is no antitrust exemption or “safe harbor” regime for ESG or other climate related activities even when such activities and their objectives are consistent with scientific and public policy priorities.[2]
Some of the concerns relate to climate change collaborations which might potentially run afoul of antitrust laws if they result in anticompetitive practices. Antitrust authorities scrutinize activities that may lead to market allocation, output restrictions, or information sharing that could undermine fair competition.[3] Agreements on pricing, exclusive dealing, tying arrangements, and collective boycotts are particularly sensitive areas that may trigger antitrust concerns. Those prohibitions are articulated in Section 1 of the Sherman Act, as well as in the prohibitions against unfair methods of competition outlined in Section 5 of the FTC Act.[4] Under this environment, the apprehension of facing legal action can create a deterrent and chilling effect, with approximately 60% of companies reportedly refraining from participating in climate coalitions, which is, in its turn, explains why most of the green collaborations are “toothless”.[5]
During a 2019 investigation run by DoJ relating to the involuntary agreements between the carmakers and State of California to reduce the emissions, the Division of DoJ expressed concern that the agreements represented a pact among automakers to refrain from producing larger, less fuel-efficient cars.[6] Justice Department lawyers closed this investigation a year after it was announced, acknowledging that the automakers had not broken any laws.[7] The Administration also clarified that antitrust enforcers routinely scrutinize agreements among competitors within an industry, even well-intentioned or politically popular goals is not an excuse.[8]
In March 2022, the Attorney General of Arizona, through a Wall Street Journal op-ed titled “ESG May Be an Antitrust Violation”, declared the application of antitrust statutes to target what he referred to as “a coordinated effort to allocate markets”. Specifically highlighting a climate collaboration, Climate Action 100+, he proclaimed the commencement of “an investigation into this potentially unlawful market manipulation”.[9]
Responding to the heightened antitrust scrutiny, we saw an alliance of insurers pull back from collectively moving away from insuring thermal coal projects on the basis of antitrust considerations,[10] Net Zero Insurance Alliance (NZIA), and as a response the NZIA removed the criteria for members to set, publish or meet environmental objectives to circumvent antitrust scrutiny.[11]
Joint efforts by investors and financial institutions have become a focal point of criticism in the United States, complicating matters. Republican state Attorneys General (AGs) are exploring alternative avenues of investigation into ESG practices. On October 19, 2022, Missouri Attorney General Eric Schmitt announced an inquiry joined by 18 other AGs concerning the United Nations’ (UN) Net-Zero Banking Alliance.[12] Describing the alliance as “a massive worldwide agreement by major banking institutions, overseen by the U.N., to starve companies engaged in fossil fuel-related activities of credit on national and international markets” AG Schmitt alleged that “Missouri farmers, oil leasing companies, and other businesses that are vital to Missouri’s and America’s economy will be unable to get a loan because of this alliance”.[13]
What is more, these inquiries have created uncertainty within the private sector about what behavior is permissible. More recently, Republican state AGs sent a letter to the Net Zero Financial Services Provider Alliance, alleging the coalition’s global goal of net-zero greenhouse gas emissions by 2050 could represent antitrust and consumer protection law violations.[14]
State Level Policy Considerations
Despite the regulatory obstacles and practices, nevertheless, there are some “safe harbor” (or so called “green collaborations”) rules from aggressive antitrust regime enacted on state level rather than federal which provide eco-friendly solutions. For instance, Texas statute states that certain cooperative agreements for oil and gas conservation and utilization are exempt from state antitrust laws, as a reasonable exception necessary for public interest. It intends for the conservation law provisions to prevail over any conflicting antitrust laws.[15] Another well-known example is also a rule promulgated in New York State, whereby the statute provides that certain climate change projects funded by the state’s Climate Action Fund are exempt from antitrust laws, including prohibitions on picketing, work stoppages, and boycotts, provided the projects enter into labor peace agreements.[16]
Sustainability Agreements
Sustainability agreements refer to collaborative efforts or arrangements among businesses, industries, or entities that jointly aim to promote environmentally sustainable practices while navigating the legal boundaries set by antitrust regulations. Sustainability agreements span a wide range of markets and objectives. Antitrust law and the enforcement agencies must consider how antitrust policy can either support or hinder these goals. As the concept of ‘sustainability’ expands, more economic activities fall under review, potentially broadening the agencies’ traditional scope, and poses challenges. In some cases, businesses may come together to form sustainability agreements, pooling resources and expertise to address climate change challenges.
These sustainability agreements can take various forms, such as joint ventures, research and development partnerships, or shared initiatives to reduce carbon emissions. These initiatives including joint purchasing or production agreements, standard-setting, and information sharing have ignited new debates and risks.
However, in the US, as explored above, such joint collaborations must carefully navigate antitrust laws, which prohibit anticompetitive practices and collusion that may harm market competition. That is why, the companies engaging in sustainability agreements must ensure that their collaborative efforts comply with antitrust principles, avoiding actions that generally run afoul of core antitrust prohibitions, such as price fixing, bid rigging, boycotts, or market allocation schemes. Comparably, antitrust regulators in both the United Kingdom and the European Union have provided explicit guidance regarding the application of antitrust laws to sustainability agreements and analogous collaborative practices among multiple firms.[17] The European Commission’s guidance contains a broad definition of sustainability “objectives” that support environmental, animal health and welfare, economic, social, including labor and human rights development.[18] Additionally, the EU rules also provide a soft safe harbor for sustainability standardization agreements that meet certain conditions.[19] The United Kingdom’s guidelines are more limited in scope, concentrating solely on environmental-related collaborations. They offer more lenient exemptions specifically for climate-related collaborations.[20]
Merger Control
During the oversight hearing held in the US Senate dated September 2022, Senator Josh Hawley questioned Lina Khan, Chair of the FTC regarding allegations that the FTC has linked merger approval, even implicitly, to companies’ adoption of ESG policies.[21] In response, Khan refuted such claims, asserting that not only are these reports inaccurate, but also that merger laws expressly prohibit the FTC from tying approval to parties’ commitment to specific ESG measures.[22] Khan emphasized that the FTC categorically would not make merger approval contingent on a company’s adoption of a particular set of ESG policies.[23] Furthermore, she highlighted instances where merging parties voluntarily presented ESG commitments to the FTC, essentially inviting the agency to consider them as favorable factors supporting the approval of the merger.[24]That same year, she noted in her Op-Ed “Our job is to prevent illegal mergers, not to make the world a better place.”[25]
What is more, under the proposed amendments initiated by FTC, the type of disclosures and information required under the pre-merger notification would be expanded and enlarged, which would be most would be the most significant change in the 45-year history of the program.[26] Among other things the merging parties would be required to make the following disclosures:
- Details about the structure of the transaction, its business rationale and the entities involved in it, including minority and private equity investors and “entities or individuals that may have material influence on the management or operations” of the acquirer, such as certain creditors, board observers and management service providers.
- Narrative descriptions of the parties’ products and services, the markets in which they are offered, and assessments of “horizontal” overlaps and any nonhorizontal business relationships between the parties, such as supply agreements.
- A vastly expanded set of Item 4(c) and (d) competition-related documents, including all draft documents, instead of just the final version, and documents prepared by or for the supervisory deal team leads, regardless of whether the leads are officers or directors of the company, as well as ordinary-course strategic plans.
- Details regarding prior acquisitions, especially any nonreportable deals.
- Names and contact information of officers and board members as well as other companies for which those individuals have served in comparable positions, as well as names of prospective officers and directors.[27]
Carbon Pricing and Competition
Carbon pricing is a policy approach aimed at reducing greenhouse gas emissions by assigning a cost to the carbon content of fossil fuels. This strategy is designed to internalize the environmental costs associated with carbon emissions and create economic incentives for businesses and individuals to reduce their carbon footprint. There are two primary mechanisms for carbon pricing: carbon taxes and cap-and-trade systems. The main goal of carbon pricing is to alter business practices. By making carbon-intensive outputs more expensive, and by creating financial incentives to low carbon activities, it creates a financial incentive to reduce use or move toward decarbonization.
The first one is called Carbon Taxes, which involves placing a tax on the carbon content of fossil fuels and is intended to incentivize emission reductions by making carbon-intensive activities more expensive. There was no comprehensive federal carbon tax in the USA, although the idea has been a subject of discussion.[28] However, there are various programs both on the state and federal level, with the objective to lower greenhouse gases through other mechanisms.
Another one is called Cap-and-Trade Systems, which sets a cap on total allowable greenhouse gas emissions. This allows industries to buy and sell emissions allowances within the cap, creating a market-based mechanism. Currently, there are already five states who are in the process of establishing a Cap-and-Trade program or have already implemented regulations.[29] In 2013, California, began operating their own cap-and-trade programs, which is linked with a program in Quebec, Canada.[30]
Of the prominent cases concerning the fixation of carbon price is Hexcel Corp. v. Ineos Polymers, Inc., which involves allegations of price-fixing in the carbon fiber market.[31] The court analyzes whether the plaintiff has standing to bring an antitrust claim when it was the largest purchaser but later became a competitor as well. The court found the plaintiff had antitrust standing and can recover overcharges even though it competed in the price-fixed market where it bought carbon fiber.
In June 2022, the U.S. Senate proposed the Clean Competition Act (CCA), introducing a carbon border adjustment on energy-intensive imports. Following the completion of its second reading, the bill, if passed, is set to enforce a carbon tariff starting in 2024, affecting both domestically manufactured products and U.S. imports.[32] Unlike the European Union’s Carbon Border Adjustment Mechanism (CBAM), the U.S. carbon tariff is distinguished by its earlier implementation schedule and targets a distinct group of industries. Nevertheless, the CCA does align with global climate change initiatives, and if implemented, the CCA would impact high carbon exports into the US. The CCA would impose higher costs to certain countries who export in sectors with a heavy reliance on fossil fuels. This would economically impact carbon intensive markets, creating an incentive to invest in cleaner energies. The CCA’s implementation involves a carbon border adjustment designed to align environmental and economic considerations, impacting sectors engaged in energy-intensive manufacturing. As noted, this move is expected to prompt affected countries to reevaluate their industrial practices and explore cleaner alternatives, marking a significant step in integrating environmental considerations into international trade practices and aligning economic activities with climate goals.
Consumer Protection and Green Claims
The Green Guides,[33] initially introduced in 1992, offer crucial guidance on environmental marketing claims, addressing both the interpretation consumers are likely to derive from specific claims and the methods marketers can employ to substantiate these claims, thereby preventing consumer deception. The FTC Green Guides serve as a critical framework for businesses to navigate environmental marketing claims, aiming to prevent deceptive practices and provide consumers with accurate information. These guidelines stress the necessity of substantiating green claims with reliable scientific evidence and discourage the use of broad, unqualified terms. Specific environmental benefits, such as recyclability or biodegradability, require clear and supported assertions.
In revising the Green Guides, the FTC expanded on a few areas, including warning marketers not to make broad, or unqualified claims that a product is “environmentally friendly” or “econ friendly”, because these are nearly impossible to substantiate.[34] The revised Green Guides also address the use of certifications[35] and comparative claims, emphasizing transparency and avoidance of misleading implications. Moreso, the revised Guide contains new sections around:
- Certifications and seals of approval;
- Carbon offsets;
- Free-of claims;
- Non-toxic claims;
- Made with renewable energy claims; and
- Made with renewable materials claims.[36]
Compliance with these guidelines is vital for maintaining consumer trust and avoiding potential enforcement actions by the FTC, which has the authority to penalize businesses engaging in deceptive environmental marketing practices. For full compliance with the Green Guides, the FTC may take enforcement actions against companies that breach these guidelines. Furthermore, the Green Guides serve as a resource in private litigation cases related to greenwashing, acting as evidence both in support of and defense against allegations of false or deceptive advertising under state laws.
In the most recent revision of the Green Guides in 2012,[37] the FTC has explicitly stated that these guidelines extend beyond environmental marketing claims directed solely at consumers; they also encompass claims made to other businesses. This clarification holds significance for both business-to-consumer and business-to-business contexts, underlining the comprehensive application of the Green Guides across various marketing interactions and emphasizing the need for transparency and accuracy in environmental claims made within the business sphere.[38]
The prominent cases that deal with the misleading green marketing claims is Bush v. Rust-Oleum Corp., which involves a lawsuit alleging that Rust-Oleum Corporation falsely marketed its Krud Kutter cleaning products as “non-toxic” and “earth friendly” when the products contained irritants.[39] The plaintiff cites the FTC’s Green Guides on environmental marketing claims to argue the labels are misleading. The case directly relates to the FTC’s enforcement against potentially misleading green marketing claims.
Another related prominent case is also White v. Kroger Co., which involved a private lawsuit alleging the “reef friendly” label on Kroger brand sunscreen was misleading. The court referenced FTC guidelines and a California statute prohibiting false environmental claims in consumer products.[40] This supports that “reef friendly” implies specific environmental benefits, making it relevant to defining misleading green claims.
One of the cases also discusses the standard while assessing the objective apprehension of green labels and marketing. In particular, the case of Hill v. Roll Internat. Corp. the court affirmed the dismissal of a consumer lawsuit alleging a green symbol on the defendant’s bottled water was misleading under the FTC’s Green Guides. The court held that a reasonable consumer would not believe the symbol indicated third-party approval or environmental superiority.[41]
Antitrust as a Tool to Achieve Green Objectives
Antitrust law can play a vital role in addressing climate change by fostering a competitive landscape that incentivizes environmentally sustainable practices. Several mechanisms demonstrate how competition law can contribute to mitigating climate change:
- Promoting Innovation: Competition encourages businesses to innovate and develop eco-friendly technologies and practices to gain a competitive edge. By fostering an environment where companies strive to outperform each other in sustainability, antitrust law acts as a catalyst for green innovation and benefit consumers.
- Preventing Anticompetitive Practices in Green Industries: Antitrust enforcement ensures that no single entity dominates the market to the detriment of competition, preventing monopolistic control and abusive practices that could hinder the development and accessibility of sustainable solutions.
- Facilitating Collaboration on Sustainable Solutions: Antitrust law allows for collaborative efforts among businesses to achieve common sustainability goals, provided such collaborations do not unduly restrict competition. This enables joint initiatives to address climate challenges, such as shared research and development efforts or industry-wide agreements to reduce carbon footprints. This includes circumstances where engaging in coordinated efforts would allow businesses to achieve sustainability goals that would otherwise be difficult to achieve through unilateral action alone.
- Ensuring Fair Market Access for Sustainable Businesses: Antitrust law safeguards fair market access for businesses engaged in sustainable practices, bringing consumers higher quality goods and service, and preventing anticompetitive behavior that could impede the growth of environmentally friendly industries.
- Consumer Empowerment for Sustainable Choices: Competition law contributes to informed consumer choices by ensuring accurate information disclosure and preventing misleading green claims. This empowers consumers to make environmentally conscious decisions, as companies compete not only on price but also on the sustainability of their products and services. Competition law not only prevents consumer deception, but also encourages the demand for, and supply of, products that cause less stress on the environment.
- Incorporating Environmental Considerations in Merger Reviews: Antitrust authorities can consider the environmental impact of mergers and acquisitions, ensuring that consolidation in industries critical to climate action does not undermine competition or hamper the development of sustainable technologies.
Future Trends
We are already starting to see a significant intersection between antitrust regulations and efforts to address climate change. As global awareness of environmental issues continues to grow, there is likely to be increased scrutiny of large corporations and their impact on the planet. Antitrust authorities may increasingly consider the environmental implications of market dominance and assess whether certain practices contribute to or hinder sustainability goals. Recognizing the importance of fostering environmentally friendly initiatives, there may be a push to establish safe harbors within antitrust regimes. Many jurisdictions have incorporated sustainability into their competition priorities, and some have already provided guidelines which include safe harbor provisions and exemptions. These safe harbors would provide a protected space for activities that promote environmental sustainability, encouraging businesses to adopt and invest in green practices without fear of antitrust repercussions. The private sector is critical to the fight against climate change, and in order to meet these global goals, it is imperative to strike a balance between competition enforcement to combat climate change. This will be crucial in shaping the regulatory landscape of the future.
[1] See the commentary by Lina Khan, Commissioner of the FTC at ‘ESG Won’t Stop the FTC‘ (Wall Street Journal, 21 December 2022), available at <link> accessed 20 August 2024.
[2] See e.g. ‘Oversight of Federal Enforcement of the Antitrust Laws‘ (U.S. Senate Subcommittee on Competition Policy, Antitrust and Consumer Rights, 20 September 2022), available at <link>; see also ‘Do Industry Climate Alliances Violate U.S. Antitrust Law?’ (Clifford Chance, December 2022), p.2, available at <link>; see also ‘Antitrust and Sustainability: EU, UK and US Take Divergent Enforcement Approaches‘ (Skadden, 10 November 2023), available at <link> accessed 20 August 2024.
[3] That is why, it has been stated that in the events that financial institutions have “agreed” or “colluded” to “starve companies engaged in fossil-fuel related activities of credit on national and international markets”, this practice invokes the classic prohibition against competitors entering contracts, combinations, and conspiracies that unreasonably restrain trade. See Clifford Chance 2022, p.2.
[4] In a Senate oversight hearing held in September 2022, the Chair of the FTC and the Assistant Attorney General of the Antitrust Division both affirmed that there is no exemption for ESG (Environmental, Social, and Governance) considerations in antitrust laws. They emphasized that collusion between companies continues to be generally prohibited. Subsequently, in an opinion essay published in December 2022, the FTC Chair reiterated and expanded upon this position, applying it to the agency’s evaluation of mergers. As per the statement by FTC Chair “Some in corporate America seem to think that the FTC won’t challenge an otherwise illegal deal if we approve of its ESG impact. They are mistaken”. See ‘Climate Cartel” or Sustainability? Navigating Antitrust Laws, ESG Initiatives and Divergent Enforcement Approaches‘ (Norton Rose Fulbright, January 2023), available at: <link> accessed 20 August 2024.
[5] See Matteo Gasparini et al, ‘When Climate Collaboration Is Treated as an Antitrust Violation‘ (17 October 2022) available at <link> accessed 20 August 2024.
[6] See Clifford Chance, 2022, p. 3.
[7] Coral Davenport, ‘Justice Department Drops Antitrust Probe Against Automakers That Sided With California on Emissions‘ (The New York Times, 07 February 2020), available at <link> accessed 20 August 2024.
[8] Makan Delrahim, ‘DOJ Antitrust Division: Popular ends should not justify anti-competitive collusion‘ (USA Today, 12 September 20219), available at <link> accessed 20 August 2024.
[9] See Gasparini et al, 2022.
[10] Todd Phillips, ‘Munich Re and Zurich withdraw from Net-Zero Insurance Alliance‘ (Green Central Banking, 11 April 2023), available at <link> accessed 20 August 2024.
[11] Alex Clere, ‘Net Zero Insurance Alliance ends criteria to publish targets‘ (InsurTech, 06 July 2023), available at <link> accessed 20 August 2024.
[12] See Allegra Fradkin, ‘Nineteen State AGs Launch Investigation Into Six Major Banks‘ (Bloomberg Law, 19 October 2022), available at <link> accessed 20 August 2024. See also ‘Antitrust law and ESG initiatives: A rapidly evolving legal landscape‘ (Davis Polk, 28 November 2022), available at <link> accessed 20 August 2024.
[13] Ibid.
[14] See e.g. the letter sent by the Tennessee Attorney General Jonathan Skrmetti on 13 September 2023 at <link> accessed 20 August 2024.
[15] See Tex. Nat. Res. Code § 103.003.
[16] See NY CLS Labor § 224-f.
[17] See Damian G. Didden ‘Antitrust and ESG‘ (Wachtel Lipton Rosen & Katz, 31 January 2023), available at <link> accessed 20 August 2024. The guidance published by UK Competition and Markets Authority (CMA) in January 2021 provides deep insight on the peculiar issues arising from the intersection of sustainable agreements and antitrust law regime. Particularly, the CMA provides comprehensive guidance on strategies for firms to steer clear of potential pitfalls in competition law. This includes detailed advice on employing a fair standard-setting process, steering clear of substantial restrictions on competition and anticompetitive behavior, and carefully considering the availability of competition law allowances, whether in the form of block exemptions or individual exemptions. See ‘Guidance, Environmental sustainability agreements and competition law‘ (Competition & Markets Authority, 27 January 2021), available at:<link> accessed 20 August 2024.
[18] ‘Commission adopts antitrust Guidelines for sustainability agreements in agriculture‘ (Press release, European Commission, 07 December 2023), available at <link> accessed 20 August 2024.
[19] ‘Antitrust: Commission adopts new Horizontal Block Exemption Regulations and Horizontal Guidelines‘ (Press release, European Commission, 01 June 2023), available at <link> accessed 20 August 2024.
[20] ‘Green Agreements Guidance: Guidance on the application of the Chapter I prohibition in the Competition Act 1998 to environmental sustainability agreements‘ (Competition & Markets Authority 185, 12 October 2023), available at <link> accessed 20 August 2024.
[21] See ‘ESG Initiatives: No Defense Under U.S. Antitrust Laws‘ (Hogan Lovells, 23 September 2022), available at <link> accessed 20 August 2024.
[22] Ibid.
[23] Ibid.
[24] Ibid.
[25] Khan, 2022.
[26] See William Stalllings et al, ‘FTC’s Proposed HSR Changes Will Complicate Merger Filings‘ (Mayer Brown, 09 August 2023), available at <link> accessed 20 August 2024. See also 68 Fed. Reg. 42178.
[27] Ibid.
[28] See ‘State Carbon Taxes: Overview‘ (Carbon Tax Center), available at <link> accessed 20 August 2024.
[29] ‘U.S. State Carbon Pricing Policies‘ (Center for Climate and Energy Solutions, last updated May 2024), available at <link> accessed 20 August 2024.
[30] ‘Cap and Trade Basics‘ (Center for Climate and Energy Solutions), available at <link> accessed 20 August 2024.
[31] See Hexcel Corp. v. Ineos Polymers, Inc., 2010 U.S. Dist. LEXIS 151435.
[32] Judy Chao, ‘Carbon tariff: U.S. rules of the game‘ (InfoLink Consulting, 26 April 2023), available at <link> accessed 20 August 2024.
[33] ‘Guides for the Use of Environmental Marketing Claims (“Green Guides”)‘ (Federal Trade Commission, 11 October 2012), available at <link> accessed 20 August 2024.
[34] ‘FTC Issues Revised “Green Guides”‘ (Federal Trade Commission, 01 October 2012), available at <link> accessed 20 August 2024.
[35] The FTC underlines that certifications and seals may be considered endorsements that are covered by the FTC’s Endorsement Guides, and warns marketers not to use environmental certifications or seals that don’t clearly convey the basis for the certification.
[36] Ibid.
[37] ‘Part 260 – Guides for the use of environmental marketing claims‘ (Federal Trade Commission), available at <link> accessed 20 August 2024.
[38] See ‘Cracking Down On Deceptive Green Marketing Claims – Recent Developments in the USA and EU‘ (Clark Hill, 29 March 2023), available at <link> accessed 20 August 2024.
[39] See Bush v. Rust-Oleum Corp., 2021 U.S. Dist. LEXIS 507, *3.
[40] See White v. Kroger Co., 2022 U.S. Dist. LEXIS 54273, *3.
[41] See Hill v. Roll Internat. Corp., 195 Cal. App. 4th 1295, 1296.