Image: adidas

Adidas has been slapped on the wrist in a matter centering on the advertising of its famed Stan Smith sneaker, a new version of which the German sportswear giant has been promoting as made from “50% recycled” materials. As part of its overarching “commitment to use only recycled polyester by 2024,” adidas launched a “fresh redesign” of one of its most iconic silhouettes, touting the sneaker as made from “50% recycled content.” While the sustainability-centric push was met with no shortage of glowing media coverage when it was rolled out this spring, the company’s claim about the recycled nature of the sneakers and its quest to end plastic waste caused the ad to land in front of a French advertising watchdog, which received a consumer complaint this spring. 

In a decision published on August 9, the Advertising Ethics Jury (“AEJ”) of French advertising regulator ARPP held that the ad in question does, in fact, run afoul of ARPP advertising rules, which require, among other things, that advertising messages are accurate and not misleading to consumers. Additionally, the advertising code mandates that marketers be able to verify any objective assertions relating to sustainability claims by way of substantive evidence at the time that such claims are made. 

The particular advertisement at issue shows a Stan Smith shoe that appears to crush an empty plastic bottle along with the text, “Stan Smith forever – 100% iconic, 50% recycled,” and “A new Stan Smith with a Primegreen upper made from a minimum of 50% recycled materials. Any plastic used on the shoe is recycled.” Additionally, the complaint called attention to the placement of adidas’ “End Plastic Waste’” logo, which is accompanied by the tagline, “Let’s put an end to plastic waste.” Still yet, there is the use of predominantly green coloring in the ad, which the complainant argued is “clearly [aimed at] making a reference to ecological issues.” 

According to the complaint, which was lodged with the ARPP in May, the ad is likely to mislead consumers, primarily in connection with its explicit claim that the sneakers are “50% recycled,” which makes it unclear “if half of the materials that make up the product are recycled or if they can be recycled at the end of their life and, if so, how way.” Beyond that, the complaint alleges that the “End Plastic Waste” logo is problematic on the basis that “buying a product that is partially made from recycled plastic is not going to ‘End Plastic Waste.’”

Adidas pushed back against the complaint, arguing that its ad does not violate ARPP rules, including because it meets all of the advertising agency’s requirements regarding clarity and truthfulness of the ad. Among other things, adidas asserted that the ad does not claim that the shoe, itself, is recyclable. Despite adidas’ arguments to the contrary, the AEJ determined that consumers are, in fact, likely to be misled by the ad, including because they are likely to believe that “50% of the adidas sneakers are made of recycled materials,” when, in reality, only the upper is made from 50% recycled material. 

“Overall, the advertisement does not enable the consumer to discern the total proportion of the shoe that is recycled, and what constitutes the most relevant data with regard to the claim used (‘50% recycled’),” the AEJ stated. Therefore, the ad “ignores the requirements of the ARPP ‘Sustainable Development’ Recommendation in terms of clarity of the message.” 

Turning its attention to adidas’ use of the “End Plastic Waste” logo – and this is a particularly interesting bit for the trademark practitioners, the AEJ essentially asserted that just because adidas maintains trademark rights in the logo (i.e., just because the logo acts as an indicator of the source of the footwear that it is used in connection with, namely, the adidas brand), does not mean that the company is not bound by advertising rules, namely, the prohibitions on misleading ads and the need to justify sustainability claims.

According to the AEJ, “It should be recalled at the outset that the mere fact that it is a registered trademark cannot exempt advertisements that use it from the obligation to respect the ethical rules in force, nor deprive the Jury of the possibility of retaining a breach due to its use.” In terms of adidas’ use of the logo, “which evokes planet Earth [and  thus,]  suggests that the company is engaged in an approach to end plastic waste,” the AEJ contends that while the plastic used to make the sneakers consists of abandoned plastic waste, “it is undisputed that this does not mean recyclable plastic.” 

Moreover, “At the end of its life, a discarded [sneaker] will add to the mass of non-recycled plastic waste and, in all likelihood, fuel resulting pollution.” As such, the AEJ stated that “it cannot, therefore, be claimed that the marketing of these shoes would constitute a means of ‘putting an end to’ plastic waste.” 

The decision of the AEJ is, in itself, the penalty for adidas given that the Jury is not permitted to sanction the violation of French advertising law, nor is it empowered to issue civil penalties. However, “Its decisions are published on its website,” according to Bernard-Hertz-Béjot attorneys Caroline Bouvier and Michel Bejot, who state that such publication acts as “a sanction from the advertisers’ point of view.” 

Given that adidas’ advertising of the recycled Stan Smith sneakers is relatively uniform across different markets, which could give rise to challenges of the same marketing messages in additional jurisdictions. It is also likely to serve as the latest wakeup call for brands that have largely been able to promote their products by way of often-vague “sustainability”-centric and “eco-friendly” language without fear of legal ramifications. The AEJ’s decision comes as sustainability claims – and ESG claims more generally – are increasingly coming under the microscope and landing companies, such as buzzy footwear brand Allbirds, down jacket-maker Canada Goose, and others, on the receiving end of litigation in the false advertising and stock drop veins, as TFL has regularly been at the forefront of reporting

Discussions about ESG – sustainability, included – “are occurring at all levels, from the boardroom to investors to employees, and governments,” according to a recent note from Skadden Arps Slate Meagher & Flom LLP, and thus, “regulators and companies are all being encouraged to take these matters into consideration.” From a company perspective, this includes ensuring that sustainability-centric advertising claims, including ones that may have largely been considered unactionable to date due to their overly indefinite or forward-looking nature, can be backed up.

Of particular importance is that companies are actually acting in accordance with the ESG claims that they make, even when those claims are made in a purely voluntary capacity. This is something that the SEC and advertising watchdogs, alike, are increasingly turning their attention to.