Through so-called "greenwashing", enterprises often suggest marketing concepts characterised by an environmental awareness which is not implemented in the enterprise itself or in the supply chain. The EU Commission wants to take stronger action against these business practices within the framework of the European "Green Deal".
After the Proposal for a Directive on empowering consumers for the green transition published in spring 2022, the EU Commission presented the long-awaited Proposal for a directive on the substantiation and communication of explicit environmental claims (Green Claims Directive) on 22 March 2023. The Green Claims Directive is to supplement the existing EU regulations on consumer protection as a lex specialis for voluntary environment-related claims in business transactions between enterprises and consumers. According to their authors, the two directives combined are to create clear rules for environment-related advertising claims.
Requirements for the substantiation of green claims
While a previous version of the draft directive still provided for the evaluation of environmental claims according to a standard method, the so-called "Product Environmental Footprint" (PEF), the EU Commission is no longer using this approach in the final version. Given the very broad and rapidly changing area of environmental claims, a more flexible approach is now considered more appropriate.
The proposal for a directive now provides for minimum criteria for the assessment of the environmental impact of products and the substantiation and communication of explicit environmental claims - subject to other provisions of Union law relating to specific products or sectors - in order to prevent misleading claims. For example, the assessment of environmental claims must demonstrate whether the claims
- are applicable to the entire product or only to parts thereof;
- are based on recognised scientific knowledge and the state of the art;
- are based on a life cycle perspective;
- contain transparent information on offsetting CO2 emissions, indicating whether the offsets relate to the reduction or elimination of CO2 emissions and how these offsets are achieved;
- lead to an improvement in the environmental aspect of the claim whilst not causing a significant impairment of other environmental aspects;
- contain information on whether, as concerns the environment, the product performs significantly better in practice than comparable products.
Additional information must be provided for comparative environmental claims. For example, a comparative environmental claim must ensure that the most important phases of the life-cycle are taken into account for all products, even if they consist of different raw materials with different uses and process chains (e.g. bio-based vs. fossil-based plastics).
The information about the explicit environmental claim made about the product or the distributor, as well as about its substantiation, is to be provided along with the environmental claim. This can be done in a physical form or, for example, through web links, QR codes or equivalent information.
Use of eco-labels
The draft also complements the requirements of the Directive on empowering consumers for the green transition as regards theuse of eco-labels in that it bans eco-labels based on self-certification. The proposal provides additional guarantees to improve the quality of eco-labels by prescribing further requirements for transparency and the substantiation of advertising claims related to eco-labels. For example, eco-labels must provide transparent information on issuers, objectives and requirements. There must also be a procedure for monitoring compliance and for suspending or revoking an eco-label awarded in case of non-compliance.
Verification of green claims and eco-labels by independent verification bodies
The completely new element is an independent inspection body checking the environmental claims and the eco-labels used by an enterprise - even before the Green Claim is used. In case of a positive assessment, the inspection body is to issue a certificate valid throughout the EU enabling enterprises to use the Green Claim in all Member States without hesitation. These inspection bodies are to be set up by the Member States.
Compliance and enforcement
Moreover, Member States are to ensure compliance with the regulations through effective, appropriate and dissuasive penalties. According to legislators, suitable measures include the confiscation of revenues from the sale of the product concerned, the temporary exclusion of the enterprise from public tenders for a period of up to 12 months, and the imposition of fines. The latter are to be equivalent to at least 4% of the enterprise's annual turnover in the Member State affected by the infringement.
For the enforcement of sanctions, the Member States may appoint the same authorities which are also responsible for the enforcement of the UCP Directive. According to the Austrian system, the regional courts in their capacity as commercial courts would thus continue to have jurisdiction in the assessment of environment-related advertising claims.
Outlook
As a next step, the proposal for the Green Claims Directive will now be discussed in the European Parliament and the European Council. The EU Commission's proposal may therefore still undergo some changes before it is finalised.
As soon as the Green Claims Directive enters into force, the Member States have a period of 24 months to transpose the new requirements into national law. Marketing and advertising concepts should already be prepared to consider the expected legal requirements. Our New Technologies and IP Team will be happy to support you in checking green claims against the expected new legislation.