Green advertising | Which country-specific regulations apply?

Green advertising in Austria 

Green advertising is mainly covered by general unfair competition law and, more specifically, by the prohibition of misleading advertising. As green claims tend to have a strong emotional effect, the Austrian courts apply a strict standard of review. If green claims come across as ambiguous to consumers, they must be supported with additional information.

There have not been a great number of cases regarding green advertising in Austria. In the cases so far, the courts have emphasised the importance of providing consumers with a clear picture of the concrete steps taken to address the claims and the frame of reference the claims relate to. Given the recent ruling by the German Federal Court in case I ZR 98/23 (for further details, see the Germany tab), it is advisable for those in Austria to also ensure that general terms such as 'climate neutral' or 'sustainable' are explained within the same advertising medium as the term (ie, within the advertisement itself and not on a separate website).

Violations of the Austrian Unfair Competition Act can be pursued either by competitors or certain associations (see below). Legal consequences can include cost- and time-intensive proceedings, often in combination with a preliminary injunction.

In the case of a loss, there is an obligation to reimburse the opponent’s legal costs, as well as an obligation to publish the judgement in a prescribed format (with the heading 'in the name of the Austrian Republic') in a medium where consumers will see, for example on the main page of the website covering at least a quarter of the screen space for 30 days (without a 'pop-up') and, in addition, in a national daily newspaper or on television.

Green trade marks may also be considered to be 'green claims' and thus may not be descriptive or pose a serious risk of misleading consumers in relation to the applied classes of goods. Violations may result in the trade mark being denied or cancelled at a later point.

The adopted EU Empowering Consumers Directive (Directive (EU) 2024/825) will put further restrictions on green advertising. Among others, it will only allow generic environmental claims such as 'green' or 'eco-friendly' if they are either explained within the same advertising medium or are based on certain environmental labels.

Claims relating to future environmental performance will have to be based on a detailed implementation plan including objective and verifiable time-based goals, a financing plan and regular verification by an independent third party. Claims relating to a product’s environmental performance based on offsetting greenhouse emissions will be prohibited (eg, 'this product is CO2 neutral').

The EU Green Claims Directive (Directive 2023/0085/COD), on its way to the trilogue negotiations beginning of 2025, will lay down strict standards for the communication and substantiation of explicit environmental claims (eg, 'we have reduced our water usage by 25% since 2020'). Furthermore, all explicit environmental claims will have to be pre-verified by a national conformity assessment body.

Violations of the EU Green Claims Directive will be sanctioned with high fines. However, having proper verification does not provide 'safe harbor' under unfair competition law. According to the present draft of the EU Green Claims Directive, the verification will not be binding on the courts.

Applicable rules

The main rules governing green advertising in Austria are listed below.

• The Unfair Competition Act (Bundesgesetz gegen den unlauteren Wettbewerb UWG): Even without the new EU legal framework, the Austrian Unfair Competition Act already contains effective instruments to combat unfair advertising practices. The most prominent of these is the general prohibition of misleading commercial practices, which all advertising measures must comply with. According to Sec. 2 of the UWG, a commercial practice is considered misleading if it contains false information or is otherwise likely to deceive market participants, eg by omitting important information, and inducing consumers to make a decision that they would not otherwise make.
  Similar to health claims, strict standards need to be applied to environmental claims, given the increased attention consumers pay to sustainability issues and the emotional nature of environmental issues that are likely to influence their decision-making. To avoid the risk of misleading consumers, environmental claims must be sufficiently clear and substantiated.

Caution is also needed when using environmental labels as the UWG’s ‘blacklist’ of misleading commercial practices (Annex I) includes false claims that the company is subject to a code of conduct, unauthorised use of quality marks, or false claims that a code of conduct or a product has been approved by a public body.

• The Trade Mark Act (Markenschutzgesetz MSchG): As consumers become more aware of where the products they buy and consume come from, green brands are becoming increasingly important. In general, green trade marks are subject to the same legal requirements as 'normal' trade marks. They go through the same application process and are examined by the Austrian Patent Office. However, due to the specific nature of green trade marks, there are a number of special aspects that need to be taken into account.
  Firstly, the trade mark must be sufficiently imaginative, as descriptiveness can lead to refusal of protection under the Trade Mark Act. In particular, terms such as 'eco' or 'green' must be used with care so that they do not merely describe the goods or services as this would lead to refusal of protection under Sec. 4 Para. 1 No. 4 Trade Mark Act.
  Due attention must also be paid to the composition of the list of goods and services, as deception is also an absolute ground for refusal under Sec. 4 Para. 1 No. 8 of the Trade Mark Act.

• Sec. 1.6 of the Code of Ethics of the Advertising Industry (Ethik-Kodex der Werbewirtschaft)(non-binding): The Austrian legal requirements for green advertising outlined above are supplemented by self-regulatory guidelines - namely Section 1.6 of the Code of Ethics of the Advertising Industry. This Code was established on a voluntary basis by the Austrian Advertising Council (AAC) in co-operation with relevant interest groups and the advertising industry.
  The Code aims to promote responsible behavior in the advertising industry, to prevent misleading advertising, and to correct undesirable developments through self-regulation. As the issue of greenwashing has recently come to the fore, the Code has been extensively revised and updated to take into account forthcoming changes in environmental claims and advertising.

By taking a forward-looking approach, the Code aims to improve the transparency, accuracy, and credibility of environmental claims in advance of the new legislative framework coming into force.

In particular, the Code states that advertisements with green claims should avoid exploiting consumers' lack of environmental knowledge and should not exacerbate environmental concerns. The language used should be understandable to the target audience and any further information should, where not provided in the advertisement itself, be easily accessible (eg through links or QR codes).

Claims should be truthful and factual, with clear evidence provided, particularly for sustainability claims. Claims should identify the product, process or element to which they relate and be supported by life cycle analysis where appropriate. Advertisements should avoid vague or misleading environmental claims and any numerical data should be clearly explained.

The visual presentation of claims should be consistent with the environmental claims, and the use of eco-labels should not be misleading. The Code requires that eco-labels used in advertising should be clear as to their validity, origin and meaning, and should not be misleading or create confusion as to their meaning. Comparisons between products or services must be based on equivalent, verifiable data. Finally, where advertisements highlight the exclusion of certain components for environmental benefits, these claims must be substantiated by evidence of past use and improvement. The Code also includes specific requirements for communicating CO2 reductions and offsets.

Regulations under two future EU directives should also be considered:

• The Empowering Consumers Directive (Directive (EU) 2024/825): Takes effect from 27 September 2026.
• The Green Claims Directive (Directive 2023/0085/COD): On its way to the trilogue negotiations beginning of 2025.

Competent authorities

• National courts.
• The Austrian Patent Office(Österreichisches Patentamt ÖPA) – in matters regarding trade mark registration
• The Austrian Advertising Council (Österreichischer Werberat ÖWR)– self-regulating body of the advertising industry
• The Association for Consumer Information(Verein für Konsumenteninformation VKI) – standing to sue for violations of the Unfair Competition Act, periodically publishes 'Greenwashing-Check' which follows a 'naming and shaming' approach
• The Chamber for Workers and Employees (Arbeiterkammer AK) – standing to sue for violations of the Unfair Competition Act.

In future, an accredited verifier (conformity assessment body) shall conduct a verification procedure pursuant to the Green Claims Directive.

Highlight cases (involving Taylor Wessing Austria as representative or adviser):

• Case 1: Austrian Airlines AG / VKI, 29 June 2022, 29 Cg 62/22z – 16 
  • Decision by the Regional Court Korneuburg in 2023 (with Taylor Wessing Austria representing Austrian Airlines AG) 
  • Facts of the case: One of the precedent cases regarding green advertising. The question in this case was under what circumstances can flights be advertised as CO2 neutral if the emissions are being offset with the usage of a sustainable kerosene alternative (SAF). 
  • Ruling: The Court emphasised the importance of providing the consumer with a clear picture of the concrete offsetting procedure. It is imperative to inform consumers about the technical limitations regarding SAF admixture and the fact that the CO2 neutrality will only be achieved over a longer period.
    The Court allowed the judgement to be published on Austrian Airlines' website with only a hyperlink, as Austrian Airlines could show in the proceedings that due to technical reasons a publication on a quarter of the website was impossible.
• Case 2: Publication ‘Green Claims’ in Tourism
  • The Austrian Tourism Agency 'Österreich Werbung' published guidelines regarding green advertising for the Austrian tourism industry together with Österreich Werbung and vionmo in 2024. This publication has been followed by other European Tourism Agencies, most recently by the Swiss Tourism Agency. 
  • The publication aims to inform members of the tourism industry on current and future practical issues regarding green advertising with industry examples.
• Case 3: Advising an Austrian state-owned electric energy provider 
  • We have recently advised a well-known Austrian electric energy provider on the forthcoming implementation of the Empowering Consumers Directive and, in particular, on the differences in the future advertising approach given the Green Claims Directive

Green advertising in France

Environmental credentials are now key considerations for consumers in their purchasing decisions and environmental claims are increasingly used by marketers when promoting their products and services. Under French laws, environmental claims are perfectly valid provided they are true, substantiated and allow consumers to make their choice on the basis of reliable information.

Greenwashing is not a new topic for the French legislator. The advertising sector and green claims are regulated by general laws, sectoral laws and regulations, in addition to self-regulatory codes and soft law provided by the French Advertising Standards Authority(Autorité de Régulation Professionnelle de la Publicité ARPP).

This regulation began in 2012 under the banner of the prohibition of unfair commercial practices: any green claim in an advertisement which is untrue, unclear, incomplete, exaggerated or not capable of substantiation will constitute misleading advertising.

In 2015, and in response to growing environmental awareness and the expansion of greenwashing, the Energy Transition for Green Growth Act(Loi relative à la transition énergétique pour la croissance verte) introduced an obligation that producers who intentionally make environmental claims in relation to a product or service must provide consumers with the corresponding main environmental characteristics of those claims.

Lastly, the 2020 Fight against Waste and for a Circular Economy Act (Loi relative à la lutte contre le gaspillage et à l'économie circulaire) and 2021 Climate and Resilience Act (Loi portant lutte contre le dérèglement climatique et renforcement de la résilience face à ses effets) reinforced the applicable legal framework against greenwashing, and corresponding sanctions, by introducing new provisions in the French Environment Code.

The EU’s Empowering Consumers Directive 'EmpCo' (Directive (EU) 2024/825) and the EU’s Green Claims Directive (Directive 2023/0085/COD) which is still being debated will also put further restrictions on green advertising when they are transposed into French law. It should be noted however that French laws already include most of their provisions.

The French self-regulatory advertising authority (the 'ARPP') has also provided detailed guidance on how to use green claims correctly in France and its rulings in relation to environmental claims across a variety of sectors provide some useful examples on what claims may fall under greenwashing.

Applicable rules

The main rules governing green advertising in France are listed below. 

• Article L. 121-2 of the French Consumer Code (Code de la consommation), which implemented the EU's Unfair Commercial Practices Directive (Directive 2005/29/EC of 11 May 2005), addresses the prohibition of unfair commercial practices, misleading claims in relation to the 'main characteristics' of a product or service and 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. The Climate and Resilience Act amended this article regarding misleading environmental claims and it 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'. 
• Pursuant to article 132-2 of the French Consumer Code (Code de la consommation), misleading claims are subject to possible criminal sanctions of up to two years' imprisonment and a maximum EUR 300,000 fine. This fine may be increased in proportion to the benefits derived from the offence, ie 10% of the average annual turnover, calculated based on the last three annual turnovers, or 80% of the costs of the offending promotion. 
• Article 90 of the Energy Transition for Green Growth Act (Loi relative à la transition énergétique pour la croissance verte) introduced an obligation that producers who intentionally make environmental claims in relation to a product or service must provide consumers with its corresponding main environmental characteristics. 
• Article 13 of the Fight against Waste and for a Circular Economy Act (Loi relative à la lutte contre le gaspillage et à l'économie circulaire) introduced new provisions in the French Environment Code, notably: 
  • to require that the producer or importer of a product make available to the consumer of certain product categories, at the time of the purchase, information relating to its biodegradability, incorporation of recycled material, reusability, recyclability, etc
  • to prohibit claims such as 'environmentally friendly', 'biodegradable' and any equivalent terms that are clearly confusing and/or too all-encompassing for consumers. 
• Article 7 of the Climate and Resilience Act (Loi portant lutte contre le dérèglement climatique et renforcement de la résilience face à ses effets) 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, such as 'climate-neutral' or 'emission free', in whatever media, to an obligation that the advertiser makes the carbon footprint assessment over the entire life cycle of the product or service as well as the measures implemented that primarily avoid, reduce and compensate greenhouse gas emissions, easily available to the public. Specific standards regarding the conduct of such assessments and disclosure requirements have been set as of 1 January 2023. 
• The self-regulatory rules for advertising and marketing provided by the ARPP and set forth in its Sustainable Development Recommendations dated 1 August 2020 (Recommandation développement durable v3) and the Anti Greenwashing Guide, published in cooperation with the French Ecological Transition Agency(Agence de la transition écologique previously named Agence de l’environnement et de la maîtrise de l’énergie ADEME). These rules are not mandatory, but compliance with them allows advertisers to comply with the rules listed above.

Competent authorities

• The French Consumer Protection Authority DGCCRF (Direction générale de la concurrence, de la consommation et de la répression des fraudes) is the main authority for enforcement actions in France against unfair commercial practices, which includes false advertising and greenwashing. The DGCCRF can initiate an investigation on its own initiative or following a complaint by a consumer.
  
  Depending on the results of the investigation, the DGCCRF may impose the following penalties: 
  • Enter into a criminal financial settlement terminating the proceedings (under the supervision of the French prosecution authorities).
  • Issue an injunction, with daily fines applying if the company delays complying with the injunction. The maximum daily fine applicable is 0.1% of the last annual turnover and the maximum total fine is 5% of the last annual turnover. 
  • Issue a publication of any cease-and-desist injunction or financial settlement pronounced against the company.
  • Remove content or restrict access to an online interface.
  • Transfer the case to French criminal prosecution authorities that may initiate criminal prosecution.

The ARPP (Autorité de Régulation Professionnelle de la Publicité) can also give its opinion on advertisements and determine whether they comply with the self-regulatory rules applicable to the advertising sector. This generally happens when companies ask the ARPP to validate their advertisement before publishing.

However, consumers or competing companies may ask the ARPP to give its opinion on an advertisement. It should be noted that the ARPP’s decisions are not binding and cannot be accompanied by sanctions, but they are generally respected by advertisers.

Highlight cases

• Case 1: AGENCE CALEDONIENNE DE L’ENERGIE – 2 April 2024, 996/24 
  • Decision by the ARPP. 
  • Facts of the case: A Facebook advertisement showed a car near an electricity point, against a green background, with only the underbody and wheels visible.
    The shape of the vehicle was reproduced in the advertisement in the form of a forest surrounding a body of water, with birds flying overhead and two wind turbines in the background. The imagery was accompanied by the following claims: 'an electric car is ecological', and 'five times less polluting than a petrol or diesel car'. 
  • Ruling: The ARPP ruled that the claims and the equation of the car to a forest do not comply with the ARPP recommendations because cars, even electric ones, have a negative impact on the environment. Indeed, the ARPP considered that the production of the car itself had necessarily led to the emission of CO2 as the car was not recyclable, and the electricity used by an electric car comes from an energy mix made up of various sources, including fossil fuels.
    In addition, the only figures used to support the advertising message ('five times less polluting'), apart from referring to a particularly vague concept, were not accompanied by any reference enabling the reliability of the claim to be verified and assessed. 
    
    
    The ARPP found that equating a natural element with a product that has a negative impact on the environment is greenwashing. Also it ruled that claiming that a product is ecologically superior to an alternative product, without providing objective, true and verifiable information to confirm this superiority, constitutes greenwashing. 
    
     
• Case 2: ANDROS – 4 October 2022, 856/22 
  • Decision by the ARPP. 
  • Facts of the case: An internet advertisement contained a banner showing a fruit puree surrounded by fruits and stylised tree branches, with the claim 'the move that counts triple'. Just below was the phrase '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 fruit puree attached to it, with a hand reaching for it, and the following claim '2- Explore new flavours'. 
  • 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, was in breach to the ARPP recommendations. 
    
    The ARPP ruled that equating a natural element with a product that has a negative impact on the environment is greenwashing. 
• Case 3: LA ROCHE-POSAY – 7 June 2022, 834/22 
  • Decision by the ARPP 
  • Facts of the case: An advertisement on the brand's website showed a tube of cream with a stylised representation of the planet and the claim 'ECOconscious tube'.
    The ad further contained the claims 'Eco-friendly tube... more respectful of the planet', 'Eco-friendly tube made of cardboard' and 'To minimise its environmental impact, the cream is packaged in a tube made of 45% less plastic than a conventional bottle...'. 
  • 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. 
    
    The ARPP found that the environmental efforts made by a company cannot be used to advertise a product it is marketing and will constitute greenwashing (ie these efforts can be used to advertise the company but cannot be used to directly advertise their products). 
• Case 4: L’EPONGE VERTE – 1 April 2022, 825/22 
  • Decision by the ARPP. 
  • Facts of the case: An advertisement on the advertiser's Facebook page and website, promoting its range of cleaning sponges for domestic use, had the following claims: '100% eco-friendly washable sponge', 'No more polluting disposable sponges' and 'zero waste'. 
  • Ruling: Although the sponges were washable and reusable, they still deteriorated and would eventually be thrown away. Considering this, and also their manufacture and distribution, they would end up having a negative impact on the environment.
    In addition, the claim 'eco-friendly' is not substantiated by concrete evidence that the sponges had a lower environmental impact compared to conventional sponges. 
    
    The ARPP ruled that claiming that a product is ecologically superior to an alternative product, without providing objective, true and verifiable information to confirm this superiority, constitutes greenwashing.

Green advertising in Germany

You can find more detailed information on green advertising in Germany, including our German Green Claims Enforcement Tracker here. 

In Germany, advertising with environmental (green) claims has become more and more common in recent years - there is hardly a product in supermarkets or drugstores that is not advertised in some way with a reference to its (positive) environmental effect. Even cruises and mineral oils are advertised with environmental claims.

Advertising with claims like ‘carbon neutral’, ‘climate neutral’ or ‘eco-friendly’ has become indispensable - just like the discussion about where reliable advertising with green claims ends and ‘greenwashing’ begins. There has hardly ever been any other topic related to competition law that has kept the German courts as busy in such a short period of time as environmental advertising using the claim ‘carbon neutral/climate neutral’.

Decisions of various regional and higher regional courts on this topic have been handed down in quick succession with sometimes very different outcomes (for detailed information on the extensive German case law see our Green Claims Enforcement Tracker).

German case law around green claims is still evolving on many issues. However, the rulings issued to date give advertisers in Germany a little more legal certainty. Since the end of 2023, at least, certain themes have emerged in the German courts. Moreover, in June 2024, the Federal Court of Justice ruled on an important issue at the highest court and provided some guidance on the interpretation and justification of the term ‘climate neutral’ (see below for details of the case).

Advertising your company or products as ‘climate neutral’ in Germany nevertheless remains fraught with risks. In addition, companies should also keep an eye on the fact that the EU wants to put an end to the advertising of products as ‘climate neutral’ on the basis of compensation measures (such as the purchase of CO2 certificates).

Companies should also comply with the much-discussed EU legislation on green claims – the Empowering Consumers Directive 'EmpCo' (Directive (EU) 2024/825) and the Green Claims Directive (Directive 2023/0085/COD), with the former applying in Member States by 27 September 2026 at the latest.

Applicable rules

The main rules governing green advertising in Germany are listed below.

Environmental claims are generally permissible in Germany and are also seen to be in the interest of promoting environmental protection and informing consumers. However, case law in Germany has said for a long time that in light of:

• the strong emotive power of such advertising statements and the complexity of environmental protection issues
• the usually low level of factual knowledge of the general public about the scientific interrelationships and interactions in this area

such advertising is subject to strict requirements and extensive information obligations.

There are no specific regulations for green claims in Germany. The assessment of environmental advertising claims, like the assessment of any other advertising claim, is governed by general competition law. In addition, the German Trade Mark Act applies to green trade marks. 

• German Act against Unfair Competition (Gesetz gegen den unlauteren Wettbewerb UWG): In Germany, environmental advertising claims to date have mostly been examined against Sections 5 and 5a of the German Act against Unfair Competition. These two provisions of German competition law are regularly at issue in court when it comes to advertising using environmental claims like ‘carbon/climate neutral’ or similar terms.
  All of the cases revolve around the issue of misleading consumers. While Section 5 of the UWG provides for a prohibition of misleading by (active) deception, Section 5a prohibits misleading by withholding essential information, ie ultimately misleading by omission. Both provisions result in the prohibition of the offending advertising. 
• Trade Mark Act (Markengesetz MarkenG): A trade mark can also contain an environmental claim or be understood as an environmental statement. The use of such a trade mark with environmental claims/statements must comply with the aforementioned requirements of the German Act against Unfair Competition. If a trade mark is to be registered, Section 8 (2) no. 4  of the Trade Mark Act in particular must be observed as it excludes the registration of misleading trade marks.

Competent authorities

Unlike in France and the UK there is no state authority in Germany that monitors compliance with advertising rules and can take action against offences. Therefore, it is mainly competitor, consumer or environmental protection associations taking up the fight against ‘greenwashing’ in Germany.

In particular, the Centre for Protection against Unfair Competition (Wettbewerbszentrale) and Environmental Action Germany (Deutsche Umwelthilfe e.V./DUH) saw fit to issue warnings to a large number of companies for environmental advertising claims and to initiate legal proceedings.

This has resulted in the many recent rulings by the German courts, which in turn has had the effect that the German courts have assumed a kind of pioneering role in the European jurisdiction when it comes to ‘carbon/climate neutrality’ claims.

Highlight cases

• Case 1: “Klimaneutral” (climate neutral) – 27 June 2024, I ZR 98/23 
  • Decision by the Federal Court of Justice (Bundesgerichtshof BGH). 
  • Facts of the case: The German confectionery manufacturer Katjes advertised fruit gums as ‘climate neutral’ in an advertisement in a trade journal for food.
    This advertisement prompted the Wettbewerbszentrale (German self-regulatory institution for the promotion of fair competition) to file a lawsuit. The Wettbewerbszentrale considered the advertisement to be misleading, as it did not provide sufficient information about the background to achieving climate neutrality.
    In this case, climate neutrality was only achieved through (additional) compensation measures, specifically through the purchase of CO2 certificates. This information was not provided in the advertisement itself, but only via reference to a website (QR code plus URL). 
  • Ruling: Unlike the two previous instances, the Federal Court of Justice classified the advertising as misleading. Its reasoning was that the risk of being misled is particularly high with environment-related advertising, such as it is with health-related advertising. Therefore, there is an increased need for clarification.
    The reduction of CO2 emissions on the one hand and the compensation of CO2 emissions on the other, are not equivalent measures. Rather, the reduction is given priority over the compensation. Contrary to the previous instance, the Federal Court was of the opinion that information made available outside of the specific advertisement is not sufficient and the claim needed adequate qualification or substantiation within the advertisement.
    Katjes should therefore have provided further explanations regarding their claimed ‘climate neutrality’ directly in the advertisement itself. The reference to further information on the internet (via QR code and URL) was insufficient. 
• Case 2: "Klimaneutrales Unternehmen" (carbon-neutral company) - 10 November 2022, 6 U 104/22 
  • Decision by the Higher Regional Court Frankfurt (OLG Frankfurt).
  • Facts of the case: This was an action among competitors. A producer of cleaning agents advertised on its website that it is a 'climate-neutral company'. However, there was no further detailed information on the claimed climate neutrality. 
  • Ruling: The court banned the advertising as it was considered misleading. While the term ‘climate neutral’ does have a certain meaning (zero carbon footprint through avoidance and/or compensation measures), there is a need for clarification about the circumstances of climate neutrality, namely:
    • whether it was achieved in whole or in part through avoidance or through compensation measures, 
    • whether certain emissions were excluded from the CO2 balance
    • on the basis of which criteria the CO2 balance was calculated.

    In this specific case, the court ruled that the advertising was misleading because certain emissions (namely Scope 3 emissions) were excluded from the CO2 balance and this was not mentioned in the advertising. 

• Case 3: “Klimaneutrales Kochbox-Unternehmen” (climate-neutral cooking box company) – 19 September 2023, 102 O 15/23 
  • Decision by the Regional Court of Berlin (LG Berlin).
  • Facts of the case: This was a case brought to court by Environmental Action Germany (Deutsche Umwelthilfe e.V./DUH). HelloFresh advertised on its website the statement ‘The first global climate-neutral cooking box company’ and ‘We offset 100% of our direct CO2 emissions’. There was no further information/explanation provided on these claims. The CO2 compensation took place through the purchase of CO2 certificates from a forest protection project in Kenya. 
  • Ruling: The Regional Court of Berlin ruled that the advertising was inadmissible because it was misleading. Firstly, it found that it was misleading because the alleged climate neutrality went beyond what could be achieved in the short term by means of CO2 certificates from a forest protection project. As previously ruled by the Regional Courts of Düsseldorf (case no. 38 O 92/22) and Karlsruhe (case no. 13 O 46/22), the general suitability of forest protection projects as compensation projects is denied in principle. Secondly, the court also ruled that the website was misleading due to the withholding of essential information, as there was no further explanation on the website regarding the background of the stated climate neutrality.

Green advertising in The Netherlands

Greenwashing is one of the hottest topics in advertising in the Netherlands at the moment. As consumers demand more sustainable goods and services, companies are keen to meet this demand and therefore market their goods and services as ‘green’ or ‘ecofriendly’.

This expanding practice of green labelling in the Netherlands has led to concerns and legal questions regarding the authenticity and legitimacy of these environmental claims, ie if the claims concerned are based on facts and can be sufficiently substantiated with relevant evidence.

Greenwashing, often defined as the practice of making false, misleading or unsubstantiated claims about environmental benefits or upsides of certain goods and services, has become a significant topic in Dutch advertising practice and in related legal matters. To address the increasing issue of greenwashing, the Netherlands has recently implemented additional rules to its already existing extensive regulatory framework that specifically target this type of advertising.

Applicable rules

In the Netherlands, a mix of implemented European legislation, national policies, and advertising codes exist to address greenwashing in advertising. 

• Dutch Civil Code (DCC) (Burgerlijk Wetboek (BW))– Implements (I) the European Directive concerning unfair business-to-consumer commercial practices and (II) the European Directive concerning misleading and comparative advertising. 
  • The Dutch legislation on unfair commercial practices is included in articles 6:193a to article 6:193j DCC. An unfair commercial practice is a specific form of the generic tort provision of article 6:162 DCC. Based on articles 6:193a to article 6:193j DCC, green advertising may be deemed unlawful if the criteria included in those provisions are not met.
    It is important to note that these provisions relate to the relationship between the business (the advertiser) and the consumer. However, there is Dutch case law applying the unfair commercial practice legislation in business to business-relationships, because of the link article 6:194a DCC makes to comparative advertising. 
  • Publications (such as green advertisements) need to meet the following criteria:
    • Cannot be misleading – article 6:193c DCC.
    • May not conceal or omit essential information – article 6:193d DCC.
    • May not be (considered) aggressive towards consumers – article 6:193h DCC.
    • May not impair consumers – article 6:193b DCC.

    Article 6:194 DCC furthermore provides a non-exhaustive list of examples of how publications (including green advertisements) may be misleading. In short, a commercial practice is deemed unfair if:

    • that practice is contrary to the requirements of professional diligence and 
    • the ability of the average consumer to take a decision on the basis of sufficient information is noticeably limited or may be noticeably limited, and as such the average consumer makes or may make a transactional decision which they otherwise would not have made.
      
      Note: The Unfair Commercial Practices Directive will soon be amended as a result of the Empowering Consumers Directive 'EmpCo' (Directive (EU) 2024/825) and Green Claims Directive (Directive 2023/0085/COD) entering into force. When this happens, articles 6:193a to article 6:193j DCC will also be subject to change.
      
      The Empowering Consumers Directive introduces a definition of 'environmental claim', lists sustainability and environmental impact as attributes which could mislead a consumer, and prohibits certain commercial practices by adding them to the blacklist (for example with regards to generic claims for which no recognised environmental excellence is demonstrated). The Green Claims Directive supplements the Empowering Consumers Directive with specific rules for substantiating and communicating green claims and introduces a certificate of conformity for such claims. 
  • Comparative advertising, which relates to green advertisements explicitly or implicitly identifying a competitor’s goods or services, is in principle allowed under Dutch law. However, there are specific conditions for comparative green advertising laid down in article 6:194a DCC that must be met. 
  • The burden of proof that a certain claim made in a green advertisement is correct rests with the advertiser. This follows from article 6:195 DC. The advertiser can be ordered to publish a rectification in case of a wrongful advertisement in accordance with 6:196 DCC. 
• Guidelines regarding sustainability claims issued by the Dutch Authority for Consumers and Markets (Autoriteit Consument & Markt ACM) 
  • In addition to the legislation included in the DCC, the ACM has created Guidelines regarding sustainability claims that contain five rules (green) advertisements need to meet: 

1. Use correct, clear, specific and complete sustainability claims. 
2. Substantiate your sustainability claims with facts, and keep them up to date. 
3. Make fair comparisons with other products or competitors. 
4. Describe your future sustainability ambitions in concrete and verifiable terms.
5. Make sure that visual claims and labels are useful to consumers, not confusing. 

• General Advertising Code (GAC) (Nederlandse Reclame Code NRC) and the Sustainability Advertising Code (Code voor Duurzaamheidsreclame CDR)
  • In addition to the DCC and the Guidelines regarding sustainability claims by the ACM, there are several self-regulatory advertising codes that apply to (green) advertising in the Netherlands. The two most relevant codes are the GAC and CDR. 
  • The GAC imposes rules for all types of advertising (any form of public and/or systematic direct or indirect commendation of goods, services and/or ideas by an advertiser or, either wholly or partly, on behalf of him, with or without the help of a third party). The most relevant provision is article 8 (specifically article 8.2 and 8.3) which prohibits several types of misleading advertisements. The requirements in article 8 show similarities to the requirements regarding unfair commercial practices laid down in the DCC. 
  • In addition to the GAC, the CDR is relevant as it applies to all sustainability claims, covering both environmental claims (all advertising messages referring implicitly or explicitly to environmental factors connected with the production, distribution, consumption or waste of processing of goods, or with related services) and ethical claims (all advertising messages giving the impression that a company’s production process or activity takes place according to certain ethical standards). Below are some of the main requirements listed:
    
    • Sustainability claims shall contain no statements, pictures or suggestions that may mislead the consumer concerning sustainability aspects of the products recommended or the contribution of the advertiser to maintaining and promoting sustainability in general.
    • All sustainability claims shall be demonstrably correct. The burden of proof rests with the advertiser. The more absolute the formulation of the claim is, the more stringent are the requirements with respect to evidential material.
    • Sustainability designations and symbols shall not be used unless the origin of the designation or symbol is clear and no confusion can arise on the meaning of the designation or symbol.

Competent authorities

• The different Dutch District Courts are competent to decide in injunction proceedings or proceedings on the merits that include claims based on not allowed (green) advertisements under the DCC. Such proceedings may be initiated by a competitor or consumers for example.
• The ACM (Dutch Authority for Consumers and Markets (Autoriteit Consument & Markt)) may sanction, after receiving a complaint or on its own initiative, based on its own assessment, companies for (green) advertisements that are not in accordance with its Guidelines for sustainability claims.
• The Dutch Advertising Code Committee (DACC) (Reclame Code Commissie) may sanction, after receiving a complaint or on its own initiative, based on its own assessment, companies for (green) advertisements that are not in accordance with the GAC or CDR. The DACC can obligate the advertiser to cease and desist the display or to amend the (green) advertisement. The ACM may impose a fine or take other, additional measures to enforce the decision in case the advertiser is not willing to voluntarily and timely comply with the decision of the DACC.

Highlight cases

• Case 1: Stichting Fossielvrij/KLM - 20 March 2024, C/13/719848/HA ZA 22-524 
  • Decision by the District Court of Amsterdam. 
  • Facts of the case: Stichting Fossielvrij filed a class action (civil lawsuit) against KLM (Royal Dutch Airlines) in which it argued that KLM acted unlawfully because it displayed 19 unlawful green advertisements (and therefore has engaged in greenwashing).
    All 19 advertisements were part of KLM’s 'Fly Responsibly' campaign and the CO2ZERO marketing campaign. One of the contested expressions was 'Join us in creating a more sustainable future'. The District Court of Amsterdam assessed if each of the 19 advertisements were unlawful and violated article 6:193a up until 6:193j DCC. 
  • Ruling: The District Court of Amsterdam held that 15 of the 19 advertisements were misleading and unlawful under article 6:193a up until 6:193j DCC. Some of the advertisements were deemed misleading since they included vague and generic statements on environmental benefits without sufficient factual basis.
    Other statements were held to be overly optimistic and therefore misleading: some of the ads falsely suggest flying (KLM) is sustainable, which is not the case. Since KLM no longer uses/displays any of the advertisements, the court did not grant the requested cease and desist order and requested order to publish a rectification. The Court however issued the requested declaration of law noting that KLM acted unlawful and ordered KLM to pay the legal fees of Stichting Fossielvrij. 
• Case 2: Colgate-Palmolive - 6 March 2024, 2023/00345 
  • Decision by the Appeals Tribunal of the Dutch Advertising Code Committee (DACC). 
  • Facts of the case: The packaging of a cleaning product of Colgate-Palmolive contained the following message: ’Bottle made of 100% recycled plastic’. The plaintiff argued that the claim was misleading and not in accordance with the CDR, because the slogan suggested the plastic used to create the bottle had been used before.
    This was not the case, since, according to the plaintiff, it is technically impossible to fully recycle and reuse plastics in such bottles for cleaning products. Defendant Colgate-Palmolive argued that the bottle did consist of 100% post-consumer recycled material and that the claim was therefore correct. 
  • Ruling: The Appeal Tribunal noted that, in accordance with article 4 CDR, Colgate-Palmolive was obliged to provide sufficient evidence that its claim was correct. The Appeals Tribunal therefore held that Colgate-Palmolive needed to prove that the bottle was made of no other material than postconsumer plastics.
    Colgate-Palmolive did not suceed in doing so. The Appeals Tribunal further held that even if Colgate-Palmolive had been able to prove that the bottle was completely made out of postconsumer plastics, the claim 'made of 100% recycled plastic' was still incorrect as, irrespective of the plastic used, these bottles did not fully consist of (recycled) plastic, but also contained (some essential) additives.
    The Appeals Tribunal therefore concluded that the claim included in this green advertisement was misleading. 
• Case 3: Shell - 26 August 2021, 2021/00190 
  • Decision by the Dutch Advertising Code Committee (DACC) 
  • Facts of the case: Shell promoted the compensation of CO2 in its marketing campaign called 'Make a difference. Drive carbon neutral'. The plaintiff argued that CO2 emissions and CO2 compensation could not be compared directly, and so they could cancel each other out (thus resulting in carbon neutral-driving). Moreover, the effectiveness of compensation measures could not be calculated exactly, which, according to the plaintiff, also meant the claim was misleading. 
  • Ruling: The Committee ruled that the contested expression qualified as an environmental claim in the sense of article 1 of the Code for Environmental Advertising (Milieu Reclame Code MRC, predecessor of the current CDR).
    Article 3 MRC provides that the advertiser must demonstrate that the environmental claims are correct. Therefore, the question was whether Shell could prove its claim was correct. The Committee concluded this was not the case, because the claim guaranteed a result even though this result was, in reality, uncertain. Therefore, the claim was in violation of article 3 MRC and deemed to be misleading.

Green advertising in the UK

Advertising and marketing are highly regulated in the United Kingdom (UK). The landscape in relation to green claims is a mixture of general laws and self-regulatory codes, primarily aimed at prohibiting misleading and harmful claims, supplemented by sector- and product-specific legislation and rules.

The laws extend to both business-to-consumer and business-to-business contexts and cover a broad range of advertising (traditional and online) and marketing settings. Breaches of the legislation can lead to criminal as well as civil sanctions, although the former are relatively rare.

The powers of the Competition and Markets Authority (CMA), a key regulator, will be significantly bolstered when the new Digital Markets, Competition and Consumers Act 2024 is implemented (expected April 2025), which will allow it to take direct enforcement action (including imposing fines) for certain breaches without the need to go to court.

There is an extensive amount of guidance on how to get green claims right in the UK. Green claims can be made, but they must be supported by evidence and be specific.

Applicable rules

The main rules governing green advertising in the UK are listed below.

• The Consumer Protection from Unfair Trading Regulations 2008 (CPUT Regulations), which implemented the EU's Unfair Commercial Practices Directive into UK law. The CPUT Regulations prohibit unfair commercial practices, including misleading and aggressive commercial practices, and contain a list of commercial practices which are in all circumstances considered unfair.
• Breach of the CPUT Regulations can result in civil and criminal sanctions. The Green Claims Code sets out how businesses can comply with the CPUT Regulations (and other relevant laws) when making environmental claims. The CPUT Regulations remain in force in the UK even though the UK is no longer an EU Member State. However, the Digital Markets, Competition and Consumers Act 2024 (DMCCA) will – when the relevant provisions are implemented (expected April 2025)– revoke the CPUT Regulations and replace them with similar (but enhanced) provisions. 
• The Business Protection from Misleading Marketing Regulations 2008 (BPRs), which govern business-to-business marketing communications. The BPRs prohibit misleading advertising and restrict comparative advertising in the UK. There are criminal sanctions for breach of the BPRs. 
• The CAP (non-broadcast) and BCAP (broadcasting) Codes, which set out the self-regulatory rules for advertising and marketing in the UK. The CAP and BCAP Codes prohibit misleading and harmful claims and contain specific provisions on the making of environmental claims. The ASA has produced a huge amount of guidance on the application of the CAP and BCAP Codes to green claims. Advertising and marketing communications which are deemed to breach them are banned. Failure to comply with any ruling can result in sanctions as well as enforcement action under the CPUT Regulations and other relevant legislation. 
• Other product- and sector-specific laws and rules include the Financial Conduct Authority's  anti-green washing rule and the various laws governing energy labelling in the UK. There are also various industry and international codes of practice. The general law of fraud and breach of contract/misrepresentation can also sometimes be relevant where false green claims are made.

Competent authorities

• The Competition and Markets Authority (CMA), Trading Standards and other sectoral regulators share responsibility for enforcing the CPUT Regulations and BPRs. The same will apply under the DMCCA 2024 (when implemented). Increasingly, the CMA is taking the lead in enforcement. That is expected to continue under the DMCCA 2024 since it confers new powers of direct enforcement on the CMA, including the power to impose significant fines. 
• The Advertising Standards Authority (ASA) enforces the CAP and BCAP Codes. 
• Increasingly, private (often group) actions concerning green claims are brought by individuals and consumer groups.

Highlight cases

• Case 1: Anglian Water Services Ltd t/a Anglian Water – 14 June 2023, G22-1171967 Anglian Water Services Ltd 
  • Decision by the ASA.
  • Facts of the case: The ruling concerned two identical adverts on TV and video on demand (VOD). The adverts featured a girl, who said,
    “Right now Anglian Water is creating wetlands to clean water using nature and make homes for wildlife…everything they do today is for tomorrow …”.
    The adverts featured various scenes of wildlife and nature, as well as renewable energy sources (a wind turbine, an electric van with text on the side saying, '100% electric 0% emissions').
    
    The complaints challenged whether the adverts were misleading because they omitted significant information about Anglian Water's history of releasing sewage into the environment. 
  • Ruling: Upholding the complaint, the ASA emphasised that the CAP and BCAP Codes require the basis of environmental claims to be clear, and that unqualified claims could mislead if they omit significant information. The fact that Anglian Water, despite carrying out several activities which could have a positive impact on the environment, also carried out several activities that caused harm to the environment contradicted the overall impression of the adverts and the ASA considered this material information which should have been made clearer.
    
    The ruling serves as a reminder of how important it is to ensure that any claims have sufficient substantiation to support them and how the ASA will take a broad view of the advertiser's business as a whole in assessing any claims. 
• Case 2: J Sainsbury plc t/a Sainsbury's – 8 June 2022, G21-1126780 J Sainsbury plc 
  • Decision by the ASA.
  • Facts of the case: A radio ad (and a variation in a TV ad) included the following claims:
    "When you think of power, you don’t usually think of a chickpea but these little wonders pack a punch. Not only are they a source of protein and iron but they also make their own natural fertiliser, which all plants need to grow. So, by mixing half chickpeas with half the chicken in your curry, your dish will be better for you and better for the planet. Chickpeas. Small but powerful. Sainsbury’s, helping everyone eat better."
    
    "To learn about how chickpeas can benefit your health and the planet visit about.sainsburys.co.uk/helping-everyone-eat-better."
    The complainants believed the chickpeas, lentils and beans in the ads were grown and imported from abroad, and so would have a greater environmental impact than domestically produced meat. 
  • Ruling: The ASA thought consumers would understand that the ads were advocating a reduction in meat portions, with examples of substitutions for plant protein equivalents, and the ad meant that reducing meat consumption in our diets was better for the environment, based on the environmental impact associated with the meat industry compared with the production of plant proteins.
    
    The ASA said the ads were focusing on a change in diet, rather than a comparison of domestic and imported produce. The ads were making a general claim regarding the overall accepted premise that a plant-based diet was, in general terms, better for the environment. They did not feature or promote any particular product range but only showed the ingredients, which could be purchased at many retailers.
    
    The claim highlighted a benefit of how chickpeas grew, and Sainsbury’s provided a link to a study which supported the claim. The ads were focusing on one aspect of the chickpea’s life cycle and highlighting a reason why reducing the portion size of chicken in a meal and substituting that for chickpeas would be better for the environment.
    
    The ads featured a URL which took consumers to a page with information on Sainsbury's 'Helping everyone eat better' campaign. This outlined the Eatwell Guide – the UK government’s dietary recommendations and provided further links to reports and articles, which were used to substantiate the claim.
    
    The ASA concluded the claims were not misleading. The ASA typically takes a hardline approach to green claims, but this ruling serves as a helpful guide as to how green claims could be made and are interpreted by the ASA. 
• Case 3: HSBC UK Bank plc – 8 June 2022, G21-1127656 HSBC UK Bank plc 
  • Decision by the ASA.
  • Facts of the case: Bus stop posters contained images of nature and said:
    "Climate change doesn’t do borders. Neither do rising sea levels. That’s why HSBC is aiming to provide up to $1 trillion in financing and investment globally to help our clients transition to net zero."
    "Climate change doesn’t do borders. So, in the UK, we’re helping to plant 2 million trees which will lock in 1.25 million tonnes of carbon over their lifetime."
    
    The ASA received 45 complaints challenging whether the ads were misleading as they omitted HSBC's contribution to CO2 and greenhouse gas emissions. 
  • Ruling: According to the ASA, the ads would be understood to mean that HSBC was making, and intended to make, a positive overall environmental contribution, and was committed to ensuring its business and lending model would help support businesses’ transition to models that supported net zero targets and was undertaking an environmentally beneficial activity by planting trees which would make a meaningful contribution towards the sequestration of greenhouse gases in the atmosphere.
    
    The ads appeared in the run up to COP26. The ASA considered that consumers would not expect that HSBC, in making unqualified claims about its environmentally beneficial work, would also be simultaneously involved in the financing of businesses which made significant contributions to carbon dioxide and other greenhouse gas emissions and would continue to do so for many years into the future.
    
    The ASA reviewed HSBC's Annual Report, which indicated that its current financed emissions stood at around 65.3 million tonnes of carbon dioxide per year for oil and gas alone, which the ASA said was likely to be much higher once other carbon-intensive industries such as power and utilities, construction, transport and coal mining had been included. HSBC intended to continue funding thermal coal mining and power production – a fuel that emitted high levels of CO2 and other greenhouse gas emissions – until 2040.
    
    The ASA acknowledged HSBC’s comments concerning the level of natural gas and oil production required up to and in 2050 and understood that some level of financing would be required for this. However, despite the initiatives highlighted in the ads, HSBC was continuing to significantly finance investments in businesses and industries that emitted notable levels of carbon dioxide and other greenhouse gases.
    
    The ASA did not consider that consumers would know that that was the case. The ASA considered it was material information that was likely to affect consumers’ understanding of the ads’ overall message, and so should have been made clear. The ads omitted material information and were therefore misleading.