Clifford Chance

On 21 February 2025, Danone settled its lawsuit against several NGOs over its use of plastic, marking a rare example a successful ADR use over French duty of vigilance claims.

Danone's lawsuit over an alleged inadequate response to plastic use

In September 2022, ClientEarth, Surfrider Foundation Europe, and Zero Waste France issued formal notices to Danone and eight other French food sector companies, claiming their use of plastic in their packaging created environmental and societal risks that they were failing to adequately address. The NGOs based their claims on the French duty of vigilance law, which requires large companies to publish an annual plan identifying and preventing significant risks to the environment, health and human rights stemming from their activities and those of their subsidiaries, suppliers, and subcontractors. A breach of the duty of vigilance can be sanctioned by a court injunction and/or damages.

Dissatisfied with Danone's response, the NGOs sued the company before the Paris Civil Court in January 2023. The NGOs asked the judges to compel Danone to:

• carry out a thorough review of its plastic usage including a detailed breakdown of all plastics used across its production processes, from manufacturing to transportation, logistics, and marketing of plastic products; and
• implement a de-plasticization strategy adapted to the current environmental emergency.

Danone's pledge for a new plastic strategy

During the first procedural hearing, the Paris Court directed the parties to mediate the dispute under the auspices of French law professor Valérie Lasserre. Following months of negotiations, the parties jointly announced they had reached an amicable agreement on 21 February 2025.

While the agreement is not public, the NGOs announced that Danone committed to:

• update and reinforce its vigilance plan regarding plastic-related risks – the new version of the plan (which should be published in the coming weeks) should acknowledge the salient risks "for water, air, soil, climate, human rights and health" caused by plastic use;
• strengthen its policy for mitigating and preventing the risks associated with plastic use by implementing reuse and recycling solutions;
• publish its "plastic footprint"; and
• hold annual meetings with the NGOs up to 2027.

In return, the NGOs agreed to withdraw their legal action before the Paris Court.

This agreement may encourage other companies to reassess their strategies for managing environmental risks and adopt a proactive, collaborative approach to meet stakeholder expectations – especially the eight companies that had been targeted by the NGO's initial notice. For the concerned companies, an amicable resolution can have a more positive media impact than a judicial decision (even a favourable one) and possibly lead to solutions far less costly to implement than the injunctions sought by the claimants.

An uncommon success for mediation in a duty of vigilance dispute

This agreement reflects a growing judicial trend that sees mediation as a key tool for resolving duty of vigilance disputes. Recent rulings from the Paris Courts involving French companies TotalEnergies and Suez have underscored the need for initial formal notice (which is prerequisite to any legal action) to serve as a starting point for a phase of dialogue between the companies subject to the duty of vigilance and stakeholders or their proxies such as NGOs.

However, despite the courts' increasing promotion of mediation, examples of successful out-of-court agreements remain rare. To date, only one other similar settlement has been recorded, in 2023, in a case involving French company IDEMIA and NGOs Data Rights, Kenya Human Rights Commission, and Nubian Rights Forum, in relation to the supply of biometric data capture equipment for the national identity management system in Kenya.

There are several plausible explanations to that.

First, companies targeted by similar legal actions may be reluctant to negotiate when the demands made of them imply drastic changes in their core business model and long-term strategies (e.g. when claimants ask them to stop certain activities, decrease their production, or renounce major projects). By contrast, in this case the NGOs criticized only the packaging of Danone's products, which represented a more manageable subject of negotiation.

Secondly, the duty of vigilance regime is largely untested. French Courts have only settled procedural issues, and only one decision on the merits has been rendered so far, against French national post company La Poste in December 2023, in relation to the use of undocumented workers. No decision has addressed potential risks to the environment, and the law notoriously lacks details on how the duty of vigilance should be implemented in practice. It is therefore difficult for the parties to anticipate what kind of decision they could be facing in their case and negotiate on the basis of converging expectations.

Thirdly, the NGOs that have been suing large French companies over the past years are seeking to draw public attention to their cases and set precedents – goals that would be incompatible with an amicable resolution of their claims. In December 2022, the eleven NGOS that had sued the French distribution group Casino in relation to alleged acts of deforestation in Amazonia refused to participate to a mediation proposed by the Court, arguing that since "public interest" was at stake it was "imperative that the case be the subject of a public debate and a court decision", and not resolved "behind closed doors", and also suggesting that a mediation could be a delaying tactic for the defendant.

Without more decisions on the merits and more certainties about the content of the duty of vigilance, successful ADR processes may remain exceptional.