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.
In its “Anti Greenwashing guide” published in collaboration with the ARPP (French Advertising Standards Authority), the ADEME identified nine indicators of greenwashing:
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:
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 ARPP rulings in relation to environmental claims across a variety of sectors give some useful examples which may (not always obviously) fall under greenwashing:
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.
Daniel Wiemann looks at the EC's proposals for tackling greenwashing.
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Timothy Pinto looks at recent ASA decisions on greenwashing in the context of the UK's regulatory framework.
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Andreas Bauer looks at rules around making carbon neutral claims and analyses recent German case law.
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Margot van Gerwen and Nick Strous look at the new Dutch Sustainability Advertising Code.
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Martin Prohaska-Marchried and Martina Stranzinger provide the top 15 points for marketers to consider when making green claims in advertising in Austria.
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