Comment by Bridgette J. Valenti
In 2023, the “P” in Kerrygold “Pure” Irish Butter’s packaging did not stand for “pure”—it stood for “PFAS.” The manufacturer of Kerrygold Pure Irish Butter took the products off supermarket shelves in early 2023 in response to a New York law prohibiting per- and polyfluoroalkyl substances (PFAS) in food packaging. Prior to the recall, a New York resident, Carolyn Winans, purchased the butter. She chose the butter because the label stated it was “pure,” which she interpreted as free of “harmful, man-made chemicals.” At the time of purchase, Winans and similarly health-conscious consumers were likely unaware that the butter’s foil wrapping contained a class of nonnaturally occurring chemicals called PFAS. These chemicals have been dubbed “forever chemicals” because they resist breaking down, both in the environment and in the body. Exposure to some types of PFAS is associated with adverse health effects, including reproductive and developmental issues. When Winans discovered that the product she purchased was wrapped in potentially harmful chemicals, she turned to the courts for redress.
Labeling butter as “pure” when it contains potentially dangerous chemicals arguably illustrates two related mislabeling phenomena: greenwashing and healthwashing. Greenwashing refers to “the act or practice of making a product, policy, [or] activity . . . appear to be more environmentally friendly or less environmentally damaging than it really is.” For example, eco-conscious consumers might choose to purchase products that they believe are free from chemicals that are harmful to the environment. Healthwashing, a less-used term, refers to companies’ misleading claims about the health benefits of their products. For example, companies may label their products as “natural” or “organic” to appeal to consumers, even if these labels are misleading.
Consumers like Winans who believe they have become victims of a misleading business practice can seek relief in the courts under various causes of action. Consumers’ claims are often brought under state consumer protection laws. In recent greenwashing cases, consumers’ theories of liability have included, inter alia, unjust enrichment, fraud, breach of express warranty, and breach of implied warranty. Breach of the implied warranty of merchantability presents a particularly interesting basis for recovery in cases of greenwashing because greenwashing claims often involve misleading labels. Theoretically, the implied warranty of merchantability provides consumers a cause of action for misleading labels because section 2-314 of the Uniform Commercial Code (UCC) expressly provides that, in order to be merchantable, goods must “conform to the promise[s] or affirmations of fact made on the container or label.” Nevertheless, some states do not allow the ultimate consumer to sue the manufacturer of the product—the entity most likely to have created the misleading label—for breach of the implied warranty of merchantability if the consumer purchased the product from an intermediary. In the language of the UCC, states with this restriction require that the consumer be in vertical privity with the manufacturer in order to directly sue the manufacturer. The courts in states with this restriction, however, have carved out numerous exceptions. Additionally, scholars have identified compelling policy arguments for elimination of the restriction altogether.
This Comment advocates for the elimination of the vertical privity requirement in implied warranty of merchantability cases. The policy reasons for elimination are especially compelling in the context of “green healthwashing,” a term this Comment employs to refer to misleading claims at the intersection of environmental and health concerns. Alternatively, this Comment argues that courts should create an exception to the vertical privity requirement in green healthwashing cases as a first step and proposes a practicable approach to doing so. The argument proceeds in four parts. Part II defines green healthwashing and discusses the unique harm it can cause consumers. Part III discusses the implied warranty of merchantability and relevant principles of commercial law, such as the economic loss doctrine and the vertical privity requirement. Part IV advocates for elimination of the vertical privity requirement in implied warranty of merchantability claims in the context of green healthwashing, or, alternatively, proposes an exception to the requirement in green healthwashing cases. Part V briefly concludes.
About the Author
Bridgette J. Valenti, J.D. Candidate 2026, Tulane University Law School; M.A. 2023, Tulane University; B.A. 2022, Tulane University.
Citation
100 Tul. L. Rev. 387