FROM GREEN WASHING TO GREENHUSHING : SHOULD LUXURY FASHION BRANDS BE LEGALLY REQUIRED TO DISCLOSE SUSTAINABILITY INFORMATION?

ABSTRACT

In recent years, sustainability has become a key issue in the luxury fashion industry. Brands are promoting their environmental and ethical commitments more than ever. While greenwashing has received significant attention, a less talked about issue is greenhushing. This occurs when companies choose not to share or limit information about their sustainability efforts. This article looks into whether luxury fashion brands should be legally required to share sustainability-related information with consumers. It compares the consumer protection frameworks of India and Ireland to see how well they manage misleading environmental claims and non-disclosure practices. The article also discusses the challenges of greenhushing. It argues that more transparency and clearer disclosure standards are needed to help consumers make informed choices and to hold companies accountable in the luxury fashion sector. Although consumer protection laws are increasingly addressing greenwashing, they are still inadequate in tackling greenhushing. There is a need for clearer obligations around sustainability disclosures for luxury fashion brands.

KEYWORDS

Greenwashing, Greenhushing, Sustainability Disclosure, Luxury Fashion Law, EU Green Claims Directive, Corporate Accountability

1. INTRODUCTION

The topic of greenwashing and greenhushing is legally significant as it concerns consumer protection , corporate transparency and sustainability in the fashion industry. Consumers increasingly rely on environmental claims when making purchasing decisions, making accurate disclosure essential. While law primarily address greenwashing, the emerging practice of greenhushing raises concerns regarding the non-disclosure of sustainability information.in today’s global fashion landscape, sustainability has become a key marketing tool for luxury brands. Therefore, ensuring transparent sustainability communication is crucial for protecting consumers interest and promoting corporate accountability. This article deals with problem where laws generally prohibit false environmental claims (greenwashing), but they do not clearly address situations where companies deliberately withhold sustainability information greenhushing.

         2. BACKGROUND:

• GREENWASHING: A significant number of environmental claims made by companies lack accuracy, resulting in growing consumer skepticism. When businesses exaggerate or misrepresent the environmental benefits of their products or practices, they create a deceptive image of sustainability, a phenomenon commonly referred to as greenwashing.
• Example: A luxury brand claims its collection is sustainable because it uses recycled packaging, while failing to disclose the significant environmental impact of its manufacturing processes.
• GREENHUSHING: It refers to the strategic decision of organizations to remain silent about their environmental achievements or sustainability goals in order to avoid heightened scrutiny from regulators, activists, or the public. Such non-disclosure reduces market transparency and hinders consumers from accurately assessing a company’s environmental performance.
• Example: A luxury fashion house implements environmental improvements but chooses not to publicize them to avoid accusations of greenwashing.
• SUSTAINABILITY DISCLOSURE: It refers to the information that companies provide about their environmental, social, and ethical practices. By making this information publicly available, companies enable consumers and investors to evaluate their sustainability efforts and make informed decisions.

In the fashion and luxury industry, this may include disclosure of:

• Carbon emissions
• Supply chain practices
• Use of sustainable materials
• Waste management initiatives
• Labor and human rights standards

The fashion and luxury industry currently faces a dilemma between greenwashing and greenhushing, making sustainability disclosure an important tool for ensuring transparency, consumer trust, and corporate accountability.

Too much marketing without evidence leads to greenwashing, while too much silence leads to greenhushing; therefore, clear sustainability disclosure requirements may provide a balanced solution.

3. LEGAL ANALYSIS

As sustainability becomes an increasingly important part of the fashion and luxury industry, businesses are facing a new challenge. On one hand, regulators are taking stricter measures to prevent greenwashing and ensure that environmental claims are accurate and reliable. On the other hand, this increased scrutiny has led some companies to avoid speaking about their sustainability efforts altogether, a practice known as greenhushing. This creates an important debate: should luxury fashion brands be legally required to disclose sustainability information, or could such requirements discourage companies from communicating their genuine sustainability initiatives.

3.1 The Indian Legal Framework

In India, the issue of greenwashing is addressed through the

1. Consumer Protection Act, 2019

• It protects consumers from misleading advertisements and unfair trade practices.
• To specifically tackle misleading environmental claims, the Central Consumer Protection Authority (CCPA) introduced the Guidelines for Prevention and Regulation of Greenwashing, 2024.

These guidelines require businesses to ensure that any sustainability or environmental claims made about their products are accurate, transparent, and supported by credible evidence.

2. BRSR framework

• The BRSR reflects India’s gradual shift towards mandatory sustainability disclosure by recognizing that stakeholders increasingly require reliable ESG information rather than broad sustainability claims. However, its applicability remains limited to certain listed entities, leaving a significant portion of the fashion and luxury industry outside its scope.
• For luxury fashion brands listed in India or with major operations there, the BRSR isn’t just a box-ticking exercise, it carries real legal weight. Companies are required to openly report how much energy and water they consume, how much they’re polluting, how they handle waste, and whether their supply chains are actually sustainable.
• What makes the BRSR particularly interesting is its “comply or explain” rule. If a company can’t meet a specific requirement, it doesn’t simply get a pass — it has to publicly say why. That might sound like a softer approach, and in some ways it is. But it puts brands in an uncomfortable spotlight. Suddenly, the polished sustainability promises on a website have to hold up against real numbers filed with regulators. When they don’t, the gap becomes visible to investors, consumers, and critics alike. It’s not a perfect system, but it does mean that vague claims about being “committed to the planet” are harder to hide behind.

3.2 The Irish and EU Legal Framework

Ireland’s approach to sustainability disclosure in the fashion sector must be understood primarily trough the lens of EU law. The European Union has taken significant steps to address concerns surrounding sustainability claims and corporate transparency.

1. Green Claims Directive:

To tackle the growing problem of greenwashing, it introduced the proposed Green Claims Directive, which requires businesses to support environmental claims with credible evidence and proper verification.

The aim is to ensure that consumers receive accurate information and are not influenced by vague or misleading sustainability claims, particularly in sectors such as fashion and luxury where environmental branding plays an important role in consumer decision-making.

While the Directive is a significant step towards consumer protection, it may also increase the compliance burden on businesses. Companies may become reluctant to communicate sustainability initiatives unless they are certain that every claim can be substantiated, thereby increasing the risk of greenhushing.[1]

        2. CSRD

The Corporate Sustainability Reporting Directive (CSRD) marks a significant shift from voluntary sustainability reporting to mandatory disclosure. By requiring companies to report on their environmental and social impact, the Directive seeks to improve transparency and accountability. As a result, consumers, investors, and regulators are better equipped to assess whether a company’s sustainability commitments are genuinely reflected in its business practices.

However, mandatory disclosure requirements alone cannot eliminate greenwashing. The effectiveness of such measures depends on the accuracy, accessibility, and verification of the information disclosed. At the same time, excessive reporting obligations may create practical challenges for businesses and discourage open communication regarding sustainability efforts.

3.3 A comparison of the Indian and European

A comparison of the Indian and European regulatory frameworks shows that both jurisdictions aim to promote transparency and prevent misleading sustainability claims, but they pursue these objectives through different approaches. In India, regulation is primarily centred on consumer protection through the Consumer Protection Act, 2019 and the CCPA Guidelines for Prevention and Regulation of Greenwashing, 2024. These measures focus on preventing businesses from making false or unsubstantiated environmental claims. Sustainability reporting is also encouraged through SEBI’s Business Responsibility and Sustainability Reporting (BRSR) framework, although its application is limited to certain listed entities.

In contrast, the European Union has adopted a more comprehensive approach. Through initiatives such as the Green Claims Directive and the Corporate Sustainability Reporting Directive (CSRD), the EU seeks not only to combat greenwashing but also to strengthen corporate transparency through mandatory sustainability disclosures. This reflects a broader commitment to ensuring that consumers and investors have access to reliable sustainability information.

Despite these differences, both frameworks face a common challenge. While stricter regulation can reduce greenwashing and improve accountability, excessive compliance requirements may discourage businesses from communicating genuine sustainability efforts, leading to greenhushing. Consequently, the success of any regulatory framework depends on maintaining a balance between preventing misleading environmental claims and encouraging transparent sustainability disclosures. Such a balanced approach is essential for fostering consumer trust, promoting corporate accountability, and ensuring that sustainability communication within the fashion and luxury industry remains accurate, credible, and meaningful.

          4. CASE LAW DISCUSSION

1. Commodore v H&M Hennes & Mauritz LP (United States District Court, 2022)

Issue: Whether H&M’s sustainability scorecards and “Conscious Choice” marketing misled consumers regarding the environmental impact of its products.

Rule: Under consumer protection and false advertising laws, businesses must ensure that environmental and sustainability claims are truthful, substantiated, and not misleading.

Application: The plaintiffs alleged that H&M’s sustainability scorecards presented inaccurate information and created the impression that certain garments were more environmentally sustainable than they actually were. The case drew attention to the increasing use of sustainability marketing within the fashion industry and the legal risks associated with unverified environmental claims. It demonstrated how consumers increasingly rely on sustainability representations when making purchasing decisions.

Conclusion: The H&M litigation highlights the need for transparency and reliable sustainability disclosures in the fashion industry. It supports the argument that brands should provide verifiable sustainability information rather than relying on broad environmental marketing claims.[2]

2. Stichting Fossielvrij NL v Koninklijke Luchtvaart Maatschappij N.V (KLM) (District Court of Amsterdam, 2024)

Issue: Whether KLM’s environmental advertisements constituted greenwashing by misleading consumers about the sustainability of its operations.

Rule: Environmental claims must be clear, accurate, and supported by evidence. Misleading sustainability representations may violate consumer protection laws.

Application: Fossielvrij NL challenged KLM’s advertisements promoting sustainable flying, carbon offsetting, and environmental initiatives. The District Court of Amsterdam held that several advertisements created an overly optimistic impression of the environmental benefits associated with flying and were therefore misleading. The court emphasized that sustainability claims must accurately reflect the actual environmental impact of a company’s activities.

Conclusion: The KLM judgment represents a significant development in greenwashing litigation and reinforces the importance of substantiated environmental claims. The decision is particularly relevant to fashion and luxury brands that rely heavily on sustainability marketing.[3]

          3. Indian Medical Association v Union of India (Supreme Court of India, 2022–ongoing)

The matter involving Patanjali Ayurved Limited concerned allegations of issuing misleading advertisements claiming exaggerated medicinal benefits and cures for various diseases. The Supreme Court of India took note of repeated violations despite prior assurances to discontinue such claims. The Court held that such conduct prima facie violates consumer protection standards and provisions under the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, and initiated contempt proceedings for non-compliance with its earlier directions. It further emphasized strict accountability and truthful representation in commercial advertising.

          8. CRITICAL ANALYSIS

The transition from greenwashing to “green hushing” highlights a structural weakness in the current legal framework governing environmental disclosures in the fashion industry. While regulatory and judicial scrutiny over misleading sustainability claims has intensified, particularly through cases involving H&M, KLM, and Patanjali, this has not been matched by a coherent duty of affirmative disclosure. The result is a fragmented compliance environment where companies are increasingly cautious about making environmental statements at all, thereby reducing transparency rather than enhancing it.

A key gap lies in the reactive nature of existing legal mechanisms. Consumer protection laws and advertising standards typically address false or misleading claims after they have been published, rather than mandating standardized pre-emptive disclosure. This creates regulatory asymmetry.Brands that attempt to communicate sustainability efforts face higher litigation and reputational risk, while those that remain silent operate in a comparatively safer legal space. In luxury fashion, where branding relies heavily on perception, this imbalance becomes particularly pronounced.

Emerging judicial and regulatory trends suggest a tightening stance on environmental claims, especially in jurisdictions such as the European Union, where regulators are moving towards requiring substantiation of “green” statements and restricting vague eco-labeling. However, even within these developments, there remains no fully harmonized obligation requiring comprehensive sustainability reporting across the sector. In contrast, India’s approach remains largely advertising-driven and complaint-based, with limited sector-specific mandatory disclosure requirements. This divergence reinforces global inconsistency in accountability standards.

From a policy perspective, the current framework produces uneven distributive effects. Consumers are disadvantaged due to lack of comparable and reliable sustainability data, while genuinely responsible brands are unable to distinguish themselves effectively. At the same time, corporations with greater legal sophistication can strategically avoid liability either through carefully crafted language or by engaging in green hushing altogether.

In my view, the existing legal regime is only partially progressive. While it is increasingly effective in addressing overt misrepresentation, it fails to promote meaningful transparency. A more coherent approach would involve mandatory, standardized sustainability disclosure obligations for luxury fashion brands, coupled with regulatory safe harbours for verified good-faith reporting. Without such reform, the law risks incentivizing silence over accountability, undermining the broader objective of environmental transparency in consumer markets.

       9. CONCLUSION

This article has examined the growing issue of environmental marketing within the luxury fashion industry, particularly the shift from greenwashing to green hushing. While courts and regulators are increasingly willing to challenge misleading or unsubstantiated sustainability claims, the legal framework remains largely focused on penalising deceptive conduct rather than ensuring transparency. As a result, companies often face uncertainty regarding how much sustainability information they can safely communicate to consumers.

The article argues that existing consumer protection and advertising laws, although effective in addressing greenwashing, are insufficient to promote genuine transparency. The absence of clear and uniform disclosure requirements may encourage businesses to withhold information about their sustainability initiatives, contributing to the rise of green hushing. Such practices undermine informed consumer choice and reduce accountability within the luxury fashion sector.

Therefore, future regulatory efforts should move beyond merely addressing misleading claims and focus on establishing harmonised and mandatory sustainability disclosure standards. A clear reporting framework would enhance transparency, strengthen consumer trust, and ensure that sustainability communication serves its intended purpose of promoting informed and responsible consumption.

REFERENCES/BIBLIOGRAPHY

1.Consumer Protection Act,2019

2.Central Consumer Protection Authority, Guidelines for Prevention and Regulation of Greenwashing, 2024.

3.Securities and Exchange Board of India, Business Responsibility and Sustainability Reporting by Listed Entities, Circular No SEBI/HO/CFD/CMD-2/P/CIR/2021/562, 10 May 2021.

4.European Commission, Proposal for a Directive on Substantiation and Communication of Explicit Environmental Claims (Green Claims Directive), COM(2023) 166 final.

5.Directive (EU) 2022/2464 of the European Parliament and of the Council of 14 December 2022 on Corporate Sustainability Reporting (CSRD).

Case Laws:

 1.Commodore v H&M Hennes & Mauritz LP (United States District Court, 2022)[1]  Commodore v H&M Hennes & Mauritz LP, No. 7:22-cv-06247 (S.D.N.Y. 2022).

2. Stichting Fossielvrij NL v Koninklijke Luchtvaart Maatschappij N.V (KLM) (District Court of Amsterdam, 2024)[1] Stichting Fossielvrij NL v Koninklijke Luchtvaart Maatschappij NV (KLM) (District Court of Amsterdam, 20 March 2024) ECLI:NL:RBAMS:2024:1512.

3.Indian Medical Association v Union of India (Supreme Court of India, 2022–ongoing)Indian Medical Association v Union of India (ongoing proceedings concerning misleading advertisements by Patanjali Ayurved). SCC Online .

[1] Securities and Exchange Board of India, Business Responsibility and Sustainability Reporting by Listed Entities, Circular No SEBI/HO/CFD/CMD-2/P/CIR/2021/562, 10 May 2021.

[2]  Commodore v H&M Hennes & Mauritz LP, No. 7:22-cv-06247 (S.D.N.Y. 2022).

[3] Stichting Fossielvrij NL v Koninklijke Luchtvaart Maatschappij NV (KLM) (District Court of Amsterdam, 20 March 2024) ECLI:NL:RBAMS:2024:1512.