The EU recently published a Guidance on Compliance Criteria on Environmental Claims (“Environmental Claims Guidance”). The Guidance is intended to support economic operators and EU Member State enforcement authorities in their application and implementation of the principles of the Unfair Commercial Practices Directive (“UCP Directive”) to self-declared environmental claims and related graphics and imagery. The UCP Directive establishes principles to prevent unfair commercial practices that may harm the commercial interests of consumers.
The Environmental Claims Guidance has been developed by the European Multi-Stakeholder Dialogue on Environmental Claims, which is composed of representatives of the European Commission, Member State enforcement authorities, industry associations, and environmental and consumer NGOs. The Guidance supplements the 2000 European Commission Guidance on Making and Assessing Environmental Claims and existing EU Member State Guidance, such as the Danish Environmental and Ethical Marketing Claims Guidance, the French Practical Guide to Environmental Claims, and the UK Green Claims Guidance. The new EU Guidance shares many of the principles of the Green Guides of the U.S. Federal Trade Commission, but it less detailed.
While the new Environmental Claims Guidance is not legally binding, Member State enforcement authorities and advertising self-regulatory bodies are likely to use it as an enforcement standard when scrutinizing environmental claims made on goods and services marketed in the EU/EEA.
The Environmental Claims Guidance defines “environmental claims” as “the practice of suggesting or otherwise creating the impression (in the context of a commercial communication, marketing or advertising) that a product or service is environmentally friendly (i.e., it has a positive impact on the environment) or is less damaging to the environment than competing goods or services.”
The Guidance provides the following recommendations:
- Environmental claims should relate to aspects that are significant in terms of the product’s environmental impact during its entire life cycle.
- All claims should be meaningful and relevant to the environmental performance of the product or service and should reflect an environmental benefit beyond what is common practice. Claims should not refer to environmental qualities that are common to all competing products or services.
- The environmental benefit claimed should not result in an undue transfer of environmental impacts (i.e., it should not create another negative environmental impact during the product’s life cycle), unless the product’s total net environmental benefit is significantly improved.
- Companies should not make environmental claims about features of products that are legally required. Claims should always refer to elements that exceed what is legally required. For example, electronic equipment should not carry “RoHS-compliant” and similar labels other than the required “CE” mark.
- The wording, imagery and overall presentation of the product should be a truthful and accurate representation of the scale of its environmental benefits.
- It should be clear whether the environmental claim refers to the whole product, service or company organization or only to specific aspects.
- Claims should preferably refer to environmental achievements instead of aspirations of future environmental performance.
- Companies should not make ambiguous and generic environmental benefit claims as these are difficult, if not impossible, to substantiate. For example, companies should avoid claims like “environment friendly,” “eco-friendly,” “eco,” “good for the environment,” “sustainable,” and “carbon friendly.” Any broad environmental claims should be accompanied by clear and prominent qualifying and explanatory language.
- Environmental claims should be substantiated by scientific evidence that is clear and robust. Manufacturers must be ready to provide this evidence to enforcement authorities upon their request.
- Environmental claims should be true at the time of marketing, and manufacturers should retain the supporting evidence for a reasonable period after the claim is made. Manufacturers should also make available to the public the relevant evidence to support their claims, for example by providing additional information on their websites.
- The Guidance tolerates the use of private labelling and certification schemes. However, labels based on these schemes should only be applied when the products or services meet their pre-defined criteria. This criteria should demonstrate clear environmental benefits compared to competing products or manufacturers, and be easily and publicly accessible. The labelling and criteria should also be subject to third party auditing and verification.
The adoption of the new Guidance confirms the European Commission’s and Member States’ pledge to increase their scrutiny of environmental claims made on goods and services marketed in the EU/EEA. Environmental claims, as any advertising practices, may be challenged and scrutinized by EU Member State advertising self-regulatory bodies, government enforcement bodies and national courts, depending on the Member State. For example, in Germany competitors may challenge environmental claims as unfair trade practices before national courts. In Spain, competitors and consumer associations may bring complaints before the self-regulatory body Autocontrol. In Italy, the Autorita Garante della Concorrenza e del Mercato may adjudicate environmental claims. In France, environmental claims are scrutinized by the Directorate for Competition, Consumer Affairs and Fraud Prevention.