Work for Fossil Fuel Clients Exposes Agencies to Increasing Legal Risks, New Report Says

If you're an agency, working for Big Oil might get you sued. That's the message of a new report from activist group Clean Creatives, a campaign by Fossil Free Media to encourage the advertising and PR industry to cut ties with fossil fuel companies. The 17-page publication, titled Smoke and Mirrors: The Legal Risks of Fossil Fuel Advertising, tracks the explosive rise in climate litigation in recent years. Over the last six years, the cumulative number of climate-related cases has more than doubled, the report found. There were 1,841 cases in 39 countries as of May 2021, although most of those are in U.S. courts. Of those that have concluded, a majority (58%) had outcomes that were "favorable to climate action," the report said. Cases related specifically to fossil fuel advertising are also on the rise, the report said, with at least three U.S. cities and seven states taking legal action against oil majors like ExxonMobil and Chevron for things like consumer fraud, deceptive trade practices, false advertising and covering up industry knowledge of climate science. More to come That's a trend that will only continue to accelerate as more impacts of the climate crisis are felt in communities around the world, according to Carroll Muffett, president of the Center for International Environmental Law. "We are still in the earliest stages of what is going to be years, if not decades, of litigation against these companies," he explained. "As our understanding of the gravity of climate impacts grows, the risks of being on the wrong side of history here, I think are really profound." It's important to remember that PR and ad agencies are not legally protected in these lawsuits in the same way that lawyers are, Muffett added, which has "fundamental implications for the industry's ability to avoid direct responsibility for its conduct by saying, 'we were only representing our clients.'" In the case of opioid manufacturer Purdue Pharma, Massachusetts attorney general Maura Healey has alleged that agency Publicis Health was responsible for increasing opioid sales through its marketing work for the drugmaker. (The agency argues that the lawsuit is without basis and requested the lawsuit be dismissed, which the court denied.) If a similar argument were used in the case of climate-related litigation, it's likely that communications between fossil fuel companies and their PR and ad agencies would be uncovered in the process, Muffett noted. "In investigations and in litigation that at its heart is about unfair and deceptive marketing practices, those communications will be discovered," he said. "That will include not only historic communications, but ongoing communications." The new Smoke and Mirrors report offers the industry a chance to avoid that kind of hit to its public image and credibility among consumers, Muffett added. "The industry has avoided liability in this context, avoided exposure in this context, for a long time. There is very little guarantee that it can continue to do so," he said. "As attention to who is driving this crisis expands beyond the oil and gas companies, expands beyond the fossil fuel producers, to who is facilitating and beyond that, the likelihood of investigation, the likelihood of litigation and certainly the likelihood that firms will be pulled up into litigation is growing dramatically." The report comes just after Chevron posted quadrupled quarterly profits, the highest numbers that the company has seen in over a decade, thanks to sky-high oil prices that are gouging drivers at the gas pump. Exxon's first quarter earnings were double its profits from the same quarter last year, though less than projected.