In Curtis v. 7-Eleven, No. 21-cv-6079, 2022 WL 4182384, at * 1 (N.D. Ill. Sept. 13, 2022), the Honorable Steven C. Seeger of the United States District Court for the Northern District of Illinois delivered an eminently readable and entertaining decision, granting in part and dismissing in part 7-Eleven’s motion to dismiss a number of “greenwashing” claims brought against it by putative class representative, Devon Curtis.  Greenwashing is defined as “the act or practice of making a product, policy, activity, etc. appear to be more environmentally friendly or less environmentally damaging than it really is.” In her complaint, Curtis alleges that she purchased foam plates, foam cups, party cups, and freezer bags from 7-Eleven.  Even though these products were labeled “recyclable”, Curtis alleges that they never really were, either because very few recycling facilities accept these products or because some of the products lacked markings, known as RIC numbers, which recycling facilities use to sort products by plastic type.  

In support of her claims, Curtis argues that under the Federal Trade Commission's Guides for the Use of Environmental Marketing Claims (“Green Guides”), “[a] product or package should not be marketed as recyclable unless it can be collected, separated, or otherwise recovered from the waste stream through an established recycling program for reuse or use in manufacturing or assembling another item.”  See 16 C.F.R. § 260.12(a).  Curtis claims that 7-Eleven violated this provision of the Green Guides by labeling the products she purchased “recyclable” when there was no way for the products to be separated or recovered from the waste stream in an established recycling program. Accordingly, Curtis sued 7-Eleven for breach of warranty, unjust enrichment, and for violations of the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), 815 I.L.C.S. § 505 et seq. 

In support of its motion to dismiss, 7-Eleven argued that Curtis lacked standing to bring claims on her own behalf and on behalf of a class, and that her complaint failed to state a claim.  “Standing” is a “short-hand term for the right to seek judicial relief for an alleged injury.” Curtis, 2022 WL 4182384, at * 5 (citing Simic v. City of Chicago, 851 F.3d 734, 738 (7th Cir. 2017)).  Courts use a three-prong test to determine whether a party has standing to bring a claim. Id. at * 6 (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)).  Specifically, plaintiffs must show that they “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.”  Id. (internal citations omitted).

Applying the first part of this three-part test, Judge Seeger found that Curtis adequately pled an economic injury when she alleged that she would not have purchased the products if she had known that they were not actually recyclable.  7-Eleven did not challenge the remaining two prongs of the test, and therefore, Judge Seeger found that Curtis had standing to bring the claims set forth in her complaint on her own behalf.   

Next, 7-Eleven argued that Curtis lacked standing to pursue claims on behalf of a class of individuals who had not purchased the four exact same products that Curtis purchased from 7-Eleven.  After recognizing that there is currently a federal district court split on this issue, Judge Seeger applied the majority rule, and found that Curtis was entitled “to sue on behalf of class members with substantially similar injuries from similar products.”  Id. at * 7 (citations omitted).  Judge Seeger went on to note that  “[i]f the named plaintiff has standing, and if the putative class members would have standing in their own right, then there does not appear to be any . . . problem with the named plaintiff representing the class” even if the class members did not purchase the exact same products as the class representative.  Id. at * 8. 

Judge Seeger went on to address whether Curtis had standing to seek injunctive relief, because as 7-Eleven argued, now that Curtis is aware of 7-Eleven’s allegedly deceptive marketing practices, it is unlikely that she or other members of the putative class would be tricked again. “Standing for injunctive relief depends on the probability of future harm”, and in order to withstand a motion to dismiss, “a complaint needs to allege a factual basis giving rise to a plausible inference that the plaintiff will suffer a future injury.”   Id. at * 9 (citing Muir v. NBTY, Inc., No. 15 C 9835, 2016 WL 5234596, at *10 (N.D. Ill. 2016)).  Judge Seeger agreed with 7-Eleven that Curtis failed to demonstrate plausible future harm on her own behalf and on behalf of the putative class, and therefore, dismissed Curtis’ request for injunctive relief without prejudice.

Finally, Judge Seeger analyzed Curtis’ ICFA claims.  The ICFA prohibits any person from engaging in “deceptive practices and unfair conduct.”  Id. at * 11 (citing Benson v. Fannie May Confections Brands, Inc., 944 F.3d 639, 646 (7th Cir. 2019)).  A practice is considered deceptive if it “creates a likelihood of deception or has the capacity to deceive a reasonable consumer.”  Id. (citing Mashallah, Inc. v. W. Bend Mut. Ins. Co., 20 F.4th 311, 322 (7th Cir. 2021)).  The reasonable consumer standard “requires more than a mere possibility that [a] label might conceivably be misunderstood by some few consumers viewing it in an unreasonable manner.”  Id. at * 12.  “Rather, the reasonable consumer standard requires a probability that a significant portion of the general consuming public . . . acting reasonably in the circumstances, could be misled.”  Id. (citing Ebner v. Fresh, Inc., 838 F.3d 958, 965 (9th Cir. 2016) and Beardsall v. CVS Pharmacy, Inc., 953 F.3d 969, 973 (7th Cir. 2020)).  Thus, Judge Seeger found that the Green Guides were not of any great use to Curtis’ claims because they are completely optional, and because it is unlikely that the reasonable consumer would even be aware of their existence. 

Judge Seeger then went on to interpret the meaning of the word “recyclable” and determined that it simply means “capable of being recycled.”  Id. at * 12.  Therefore, Judge Seeger found that Curtis’ first theory of liability under the ICFA failed to state a claim, because if the material itself is capable of being recycled, it is not false or misleading for 7-Eleven to advertise that fact, even if extrinsic factors like insufficient facilities or economic infeasibility make recycling unlikely to happen.  Conversely, Judge Seeger found that Curtis’ second theory of liability stated a claim, because a lack of RIC numbers is intrinsic to the product itself, and it prevents the product from being recycled at any facility.   

Thus, Judge Seeger dismissed Curtis’ ICFA claims to the extent they relied upon the unavailability of recycling facilities or the likelihood that the products will, in fact, be recycled, but upheld Curtis’ remaining ICFA claims to the extent they relied upon the products’ lack of RIC number.  Judge Seeger upheld Curtis’ breach of warranty claim and unjust enrichment claims to the same extent and denied the remainder of 7-Eleven’s motion to dismiss.

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