Environmental claims: the battle in opposition to greenwashing is gaining momentum

The overall framework prohibiting unfair industrial practices

The principles till now, had been largely primarily based on the final prohibition of deceptive industrial practices, which requires a case-by-case evaluation of every declare, which should not be misleading or more likely to mislead shoppers.

A number of elements of sentimental regulation, such because the French Ministry of the Economy’s Practical guide to environmental claims (the brand new model of which has been introduced months in the past…), the Commission’s guidelines on the application of the directive on unfair commercial practices and the “Sustainable Development” recommendation of the ARPP (the French advertising self-regulatory organization), had been helpful additions to this framework, by offering extra exact standards for sure claims and permitting an evaluation of the situations underneath which a declare must be considered deceptive.

In 2021, a transparent message was despatched with the adoption of the so-called “Local weather and Resilience” French regulation No. 2021-1104 of twenty-two August 2021, which specifies that the “environmental influence” is without doubt one of the standards that may be thought of the reason for a deceptive or misleading declare. Whereas it was beforehand fairly doable to incorporate an environmental declare on this framework of deceptive industrial practices, the aim of expressly stating that is undoubted to facilitate the evaluation (and the contesting) of “inexperienced” claims within the mild of the prohibition of deceptive industrial practices.

An increasing number of particular guidelines

As well as, a number of particular guidelines have been created to control sure environmental claims. For instance, the so-called “AGEC” French regulation (No. 2020-105 of 10 February 2020) expressly prohibits all-encompassing claims equivalent to “biodegradable” or “environmentally pleasant”. There once more, such bans may already be imposed earlier than, however a transparent rule backed up by regulation is at all times higher than mere tips.

Claims regarding “carbon neutrality” have additionally been the topic of particular guidelines because the adoption of the Local weather and Resilience regulation, not too long ago made specific by a decree setting out the requirements for such communication.

We’re subsequently transferring from cross-cutting guidelines to guidelines that particularly body some claims, to make sure a better authorized certainty for operators, but in addition to facilitate controls and enforcement.

Enhanced penalties

This new battery of texts is supplemented by new penalties. The brand new guidelines particularly governing sure claims are typically related to administrative sanctions, which can permit for better effectiveness and, above all, for sanctions to be awarded extra shortly.

Moreover, for claims which can be thought of to be deceptive or misleading regarding environmental issues with regard to the prohibition of unfair industrial practices, the penalty can now be as much as 80% of the bills for the promoting or observe constituting the offence. The environmental influence is thus far the one challenge related to such a penalty quantity (a most price of fifty% being supplied for in different instances). The sign couldn’t be clearer.

What about Europe?

European authorities have additionally introduced plenty of initiatives to make progress within the battle in opposition to greenwashing.

Of specific notice is the draft revision of the EU Directive No. 2005/29 on unfair commercial practices, offered on 30 March, which gives, amongst different issues – and this can be a level that must be intently monitored – to specify that claims regarding “future environmental efficiency with out clear, goal and verifiable commitments and targets and with out an unbiased monitoring system” might represent deceptive industrial practices. Ten new industrial practices thought of deceptive in all circumstances, and linked to greenwashing, also needs to enter the blacklist.

Lastly, European authorities are working in parallel on a draft regulation on the substantiation of environmental claims to make these claims reliable, comparable and verifiable throughout the EU. The duty is a tricky one. Certainly, as there’s presently no single methodology for analysing the life cycle of merchandise and measuring their environmental footprint, this European initiative ought to compel operators to substantiate their claims on the environmental footprint of their merchandise utilizing standardised quantification strategies.