Page 20 - Katten Kattwalk and Kattison Avenue - Winter 2026 - Issue 5

Net Zero Claims Under the Gun (continued)

Nevertheless, JBS argued that its
“net zero” claim was aspirational
in nature and was not intended to
communicate to consumers that it had
already achieved reductions in carbon
emissions today. NAD recommended
that JBS substantially modify such
claims. JBS USA Holdings, Inc. (Net
Zero 2040), Report #7135, NAD/
CARU Case Reports (February 2023).

When JBS allegedly did not comply
with NAD’s recommendations to
modify its claims, the New York
Attorney General sued the company,
alleging that JBS had not made
meaningful progress toward its stated Factor 3: Concerns about Scope 3
goal. The New York Supreme Court dismissed the
case without prejudice, and the parties settled before If we accept the imperative that a successful business
the attorney general could file an amended complaint. will grow its sales, Scope 3 emissions should increase
New York v. JBS USA Food Company et al., No. 25- — at least so long as the world operates in a fossil
067 (Oct. 30, 2025). A prominent shortcoming cited fuel-based economy and/or other decoupling of
by the attorney general was JBS’s inability to fully supplier emissions from sales growth is not achieved.
calculate Scope 3 emissions. Scope 3 emissions are those not produced by the
company, but which result from activities of third-
A recently settled case in Washington, DC, had a party suppliers and others in the value chain. They are
similar set of allegations. Tyson Foods agreed to stop notoriously hard to calculate. If they are included, it
making net zero claims after plaintiff activists alleged seems likely today that most growing businesses will
that Tyson’s public statements “regarding Tyson’s not be able to achieve net zero (even 25 years from
Climate-Smart Beef Program and Tyson’s ambition now) without the aid of carbon offsets.
to achieve net-zero greenhouse gas emissions by
2050 are false and misleading to consumers because, Renewable energy credits (RECs) are also under
given the scale of Tyson’s emissions, achieving these scrutiny. A company that pays more for energy supply
commitments would require radical changes to may receive RECs that signify the consumption of
Tyson’s beef production, and Tyson has no plan and renewable energy from the grid. That renewable
has taken no meaningful steps to achieve this.” See energy might be produced elsewhere. Activists
Settlement Agreement between EWG and Tyson Foods, sometimes criticize RECs on the basis that using them
DC Superior Court, No. 2024-CAB-005935 (filed allows the consuming party to continue to burn fossil
11/12/25). fuels while maintaining the illusion of consuming
renewable energy produced (in some cases) far away.
These two cases illustrate concerns that animate Theoretically, a company in New York could buy
much current greenwashing litigation: a focus on RECs from a wind power plant in California. It might
the mismatch between a company’s aspirational claim that it is powered by 100 percent renewable
advertising and its inability to completely account for energy — all the while continuing to spew pollutants
supply chain activities, and a decision by activists to from smokestacks. The activists want RECs to be
target high-intensity carbon-producing activities. generated closely in time and space to the consuming

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