On one hand, this is certainly true. “It is good for the environment”, “zero impact” (the so-called “green claims” or “environmental claims“), etc. are undoubtedly attractive statements both to the public and to companies, which not infrequently include these slogans not only in their products but also in their distinctive signs, make their brands “green” or create new ones, with the aim to convey an eco-friendly message.
On the other hand, however, recent studies have shown that consumers appear to stop buying products of a certain brand if they realize that the sustainability information provided by the manufacturer is false or unverified.
Companies must therefore exercise caution in their use of green claims, so as not to disappoint the expectations of trusted (and potential) buyers and steer clear of existing regulations, along with those that will be introduced soon.
The European legislator, sensitive to the issue of sustainability like Gen Z, has stepped in to cease the abuse of green claims at the EU level, especially when these are employed as a tool aimed to augment corporate reputation without really implementing initiatives that strive to safeguard the environment. Great attention has been given to greenwashing practices, i.e. communication strategies implemented to cultivate a positive brand image from the environmental point of view with the aim to divert the public’s attention from the negative effects the company’s operations have on the environment.
On March 26th, 2024, Directive (EU) 2024/825 came into force, introducing specific harmonised rules aimed at fighting against unfair and misleading commercial practices towards consumers.
The will of the legislator is made very clear in the incipit of the Directive: “in order to contribute to the proper functioning of the internal market, based on a high level of consumer and environmental protection and to make progress in the green transition, it is essential that consumers make informed purchasing decisions, thus collaborating to establish more sustainable consumption patterns. This implies that economic operators have a responsibility to provide clear, relevant and reliable information“.
Among the pillars of Directive (EU) 2024/815, we find:
1. The new definitions of “environmental claim” and “generic environmental claim”.
An environmental claim is defined as “in the context of a commercial communication, any message or representation that is not mandatory under Union or national law, in any possible form […] that manifests or implies that a certain product, product category, brand or economic operator has a positive or no impact on the environment or is less harmful to the environment than other products, product categories, brands or economic operators or has improved its impact over time“.
On the other hand, a generic environmental claim can be intended as “any environmental claim made in writing or orally, including through audiovisual media, not included in a green trademark and whose specification is not provided in clear and conspicuous terms through the same means of communication“.
2. The introduction of new misleading and unfair commercial practices.
Directive (EU) 2024/825 introduces new misleading and unfair commercial practices, namely:
- practices aimed to mislead the consumer about the environmental and social characteristics of the product or circularity aspects, based on an assessment that needs to be carried out on a case-by-case basis;
- environmental claims of future environmental operations, which are not supported by clear, objective, publicly available and verifiable commitments set by the economic operator, and listed out in a detailed and realistic implementation plan that includes measurable goals and deadlines;
- the advertisement of features that are irrelevant and not directly linked to any characteristic of the product as advantageous for consumers as these may be induced to believe that such features are more beneficial to them, the environment or the society than other products;
- the comparison of products by virtue of their environmental or social characteristics or circularity aspects, without providing consumers with information on the method of comparison;
- the use of generic environmental claims (e.g. ‘environmentally friendly’, ‘eco-friendly’, ‘green’, ‘nature-friendly’) in the absence of recognised excellence in environmental operations. In this respect, a statement made in writing or orally in combination with implicit statements realized through colours or images possibly constitutes a generic environmental claim;
- the use of environmental claims that let the public think that the product as a whole or the activity of the economic operator as a whole is ‘sustainable’ when instead the claim is solely related to a certain aspect of the product or a specific element of the economic operator’s business;
- the use of claims that suggest that a product has a neutral, low or positive impact on the environment because of greenhouse gas offsetting emissions;
- the presentation for all products of a given category of EU law-imposed requirements as if they were a distinctive feature of the economic operator’s offer;
- not informing consumers that a certain software update will adversely affect the functioning of goods that include digital elements or the use of digital content or digital services;
- falsely declare a certain durability of the goods in terms of time or intensity of use under normal conditions or the presentation of repairable products when the repair is however not possible. In this respect, the national legislator will also have to intervene regarding the now widespread practices associated with early obsolescence, including the practices of planned early obsolescence of products (in particular, electronic ones).
Noteworthily, the Directive also forbids to display green trademarks (a definition that also includes some certification trademarks) that are not based on a certification system or are not recognized by public authorities. Before doing so, the economic operator is expected to make sure that, according to the terms of the certification system available to the public, the trademark adheres to minimum conditions of transparency and credibility, including the existence of an objective check of compliance with the requirements of the system. Such check should be carried out by a third party.
When displaying a green trademark involves a commercial communication suggesting or giving the impression that the product has a positive or no impact on the environment or is less harmful to the environment than competing products, such trademark should also be considered as an environmental claim.
It has already been clarified that lack of compliance with the provisions will give rise to (even quite high) penalties.
EU member states will now have to transpose the Directive into the various national laws by March 27th, 2026.
Our consultants are at your complete disposal to delve deeper into any sustainability-related queries you may have, also during a dedicated meeting that B&Z will be organizing in the upcoming months.
