The French regulatory arsenal against greenwashing: challenging times for marketers making environmental claims

It's hardly breaking news that environmental credentials are key considerations for consumers in their purchasing decisions and that environmental claims are increasingly used by marketers when promoting their products and services.

In the survey published in September 2022 by the ADEME (French Ecological Transition Agency acting notably under the supervision of the Ecological Transition and Territorial Cohesion Ministry), 76% of respondents indicated they were strongly interested in a responsible consumption approach. At the same time, respondents appeared to have a certain level distrust about brands advertising their sustainability and up to 84% wanted to be provided with tangible evidence in this respect.

Environmental claims either promote the absence of any harmful impact to the environment in a product or service, or set out their benefits to the environment, and frequently use words like “green”, “natural”, “organic”, “eco-friendly”, “eco-responsible”, “plastic-free”, “100% recyclable”.

Under French laws, environmental claims are perfectly valid provided they are true and substantiated, allowing consumers to make their choice on the basis of reliable information. Any advertising claim which is untrue, unclear, incomplete, exaggerated or not capable of substantiation (a practice known as 'greenwashing') will constitute misleading advertising.

What is greenwashing?

In its “Anti Greenwashing guide” published in collaboration with the ARPP (French Advertising Standards Authority), the ADEME identified nine indicators of greenwashing:

• a genuine lie - the claim has no grounds whatsoever in relation to the product or service being promoted
• a disproportionate promise with regard to the effective environmental virtue or benefit of the product or service
• vague claims with no precise definition
• insufficient information in relation to the claim even though there may be a benefit to the environment
• a visual too suggestive of environmental virtues or benefits the product or service does not have
• a false environmental or sustainable development certification through a 'home-made' label without any proper process of attribution or control by a competent and independent body
• an irrelevant emphasis of environmental action conducted by the advertiser, but which is not related to the product or service promoted
• no evidence to substantiate the claim
• an alleged exclusive environmental virtue or benefit which is in any event legally compulsory and/or standard market practice.

The regulatory framework in France

Greenwashing is not a new topic for the French legislator.

Article L. 121-2 of the French Consumer Code, which implemented Directive 2005/29/EC of 11 May 2005, addressed the prohibition of unfair commercial practices, misleading claims in relation to the “main characteristics” of a product or service as well as the “scope of commitments of the advertiser”. Although environmental claims were not explicitly referred to, the broad definition of the prohibition made it possible to sanction misleading environmental claims, including by reference to 'soft law' rules and recommendations issued by the ARPP regarding “sustainable development”.

In 2015 and in response to growing environmental awareness and the greenwashing expansion, the Energy Transition for Green Growth Act introduced an obligation on producers intentionally making environmental claims in relation to a product or service, to attach to such claims and make available to consumers the corresponding main environmental characteristics of such products and services.

The 2021 Climate and Resilience Act reinforced the applicable legal framework against greenwashing and corresponding sanctions.  It introduced new provisions in the French Environment Code notably:

• to prohibit any advertising in relation to fossil fuels as well as new cars (from 2028) with set levels of carbon dioxide emissions
• to subject any claim in relation to carbon neutrality or similar claims, such as “climate-neutral” or “emission free”, on whatever media, to the obligation for the advertiser to make easily available to the public the carbon footprint assessment over the entire life cycle of the product or service as well as the measures implemented so as to primarily avoid, reduce and compensate greenhouse gas emissions. Specific standards regarding the conduct of such assessments and disclosure requirements have been set as of 1 January 2023.

Advertisers face fines which may go up to the entire cost of the promotion if they are found to have breached any of the above prohibitions or obligations.

The Climate and Resilience Act amended Article L. 121-2 of the French Consumer Code regarding environmental misleading claims, which now expressly addresses “the properties and the results expected from the product or service, including its environmental impact” as well as “the scope of commitments of the advertiser, including from an environmental standpoint”.

Misleading claims were already subject to possible criminal sanctions of up to two years' imprisonment and a maximum EUR 300,000 fine which could be increased in proportion to the benefits deriving from the offence, i.e. 10% of the average annual turnover, calculated on the basis of the last three annual turnovers or 50% of the costs of the offending promotion. The amount of the fine for misleading environmental claims may now go up to 80% of said costs.

Recent decisions on green claims in advertising

Recent ARPP rulings in relation to environmental claims across a variety of sectors give some useful examples which may (not always obviously) fall under greenwashing:

ANDROS – 4 October 2022

• Facts: An internet advertisement with a banner showing a compote gourd surrounded by fruits and stylised tree branches, with the claim: “the move that counts triple”. Just below, was written “1, 2, 3, make the move that counts triple! With just one Andros recyclable gourd, do three things every day that are good for you and for the planet”.
  
  Further down, the page displayed three banners showing these moves. The second one showed a stylised tree branch with an apple, a pear and a compote gourd attached to it, with a hand reaching for it, and the following claim “2- Explore new flavours”.
• ARPP Ruling: Although the average consumer is not misled about the nature of the moves described or the presentation of the gourd growing on the tree, associating the gourd which has an intrinsically negative impact on the environment, to a plant to make an ecological claim, is in breach to the ARPP recommendations.

L’EPONGE VERTE – 1 April 2022

• Facts: An advertisement on the advertiser's Facebook page and website, promoting its range of cleaning sponges for domestic use, with the following claims: “100% eco-friendly washable sponge”, "No more polluting disposable sponges" and "zero waste".
• ARPP Ruling: Although these sponges are washable and reusable, they deteriorate and will eventually be thrown away. Therefore, and in addition to their manufacture and distribution, they will end up having a negative impact on the environment. In addition, the claim “eco-friendly” is not substantiated by concrete evidence that these sponges have a lower environmental impact compared to conventional sponges.

LA ROCHE-POSAY – 7 June 2022

• Facts: An advertisement on the brand's website showing a tube of cream with a stylised representation of the planet and the claim “ECOconscious tube”. The ad further claimed: “Eco-friendly tube... more respectful of the planet”, “Eco-friendly tube made of cardboard”, “To minimise its environmental impact, the cream is packaged in a tube made of 45% less plastic than a conventional bottle...".
• ARPP Ruling: Regardless of the eco-friendly efforts undertaken by the brand to reduce its environmental impact and the level of plastic in the tube, the claim "eco-friendly" constitutes an absolute claim (as opposed to a claim such as "more respectful of the planet"). This claim is not substantiated as the tube is neither entirely made of bio-based materials, nor recyclable, and its manufacturing and distribution necessarily have a negative impact on the environment.

What next?

Greenwashing is subject to a powerful French legal and regulatory arsenal. The European Commission has just issued its “Proposal for a Directive on substantiation and communication of explicit environmental claims” as we discuss here. French laws already include most of its provisions but there will need to be new adjustments as a result  and this will result in it becoming even more challenging for marketers in France to make environmental claims in advertising.