Businesses keen to communicate their products’ green credentials while reducing the risk of misleading customers should respect the following key principles, which are well articulated in the CMA’s draft guidance:⁷

• Claims must be truthful and accurate: Businesses must live up to the claims they make about their products, services, brands and activities.
• Claims must be clear and unambiguous: The meaning that a consumer is likely to take from a product’s messaging and the credentials of that product should match.
• Claims must not omit or hide important information: Claims must not prevent someone from making an informed choice because of the information they leave out.
• Claims must only make fair and meaningful comparisons: Any products compared should meet the same needs or be intended for the same purpose.
• Claims must consider the full life cycle of the product: When making claims, businesses must consider the total impact of a product or service. Claims can be misleading where they do not reflect the overall impact or where they focus on one aspect of it but not another.
• Claims must be substantiated: Businesses should be able to back up their claims with robust, credible and up-to-date evidence.

These principles are in line with earlier guidance from the EU Commission for making and assessing environmental claims under the UCPD.⁸ Additional useful criteria and examples can be found in several other national guidance documents on environmental claims, notably the French Practical Guide to Environmental Claims for traders and consumers,⁹ and the UK Green Claims Guidance.¹⁰

The Dutch Authority for Consumers and Markets (ACM) also recently published Guidelines regarding sustainability claims¹¹ that contain similar recommendations to the draft UK guidance. They spell out in equally clear and simple terms the following five rules of thumb:

• Make clear what sustainability benefit the product offers: Sustainability claims are only of use to consumers if these are clearly phrased and easy to understand.
• Substantiate sustainability claims with facts, and keep them up to date: It is important to check regularly whether claims still hold up, or whether they need to be revised.
• Comparisons with other products or companies must be fair: Comparisons with other products or companies should not lead to any misunderstandings among consumers about the sustainability aspects of various products.
• Be honest and specific about your company’s efforts with regard to sustainability: A claim about future goals for marketing purposes should only be used if there is a clear, concrete, and verifiable strategy to realise those goals.
• Make sure that visual claims and labels are useful to consumers, not confusing: It must be clear what a label stands for, and on the basis of what criteria the label has been awarded.

Given that companies often use (self-made) logos on their product labels and/or websites (e.g., carbon neutral logo), the Dutch guidelines also mention that “companies also use logos that look like labels”, and that this “label in itself can be misleading”. The UK guidelines add that “a logo or symbol should not be created or presented in a manner that may imply it has been endorsed by another organisation when it has not.” This includes “logos developed by companies themselves (i.e., that may have no verified meaning).”

Non-compliance can lead to:

• Costly and time-consuming investigations by consumer and/or competition authorities for unfair commercial practices and/or even, in some instances, for potential violations of competition law rules where a dominant company denigrates competing products, or where competitors use an environmental claim as a screen to engage in anti-competitive collaboration. 
• Court proceedings
• Payment of redress to any consumers harmed by a breach of consumer protection law
• Fines and periodic penalties
• A negative impact on supply relationships (e.g., delisting by retailers)
• Reputational damage

The EU Commission is currently also looking at ways to strengthen the powers of national authorities, to better equip them to deal with greenwashing instances in a coordinated fashion. 

Practical compliance tips

Companies should bear the following practical recommendations in mind when they formulate green claims about their products and services

• DO express claims in a way that is transparent and straightforward. They need to be easily understandable.
• DO openly state any conditions or caveats that apply. These should not contradict the claim.
• DO ensure that claims can be substantiated by evidence that is robust, credible and up to date.
• DO use independent third-party research to support an environmental claim.
• DO make sure claims are up to date in light of new evidence, technological developments and changes to legislation.
• DO base comparisons with competing products on clear and objective information.
• DO make comparative claims that can be substantiated by transparent, accurate and easily verifiable evidence.
• DO take into account the total life cycle of a product or service before making an environmental claim.
• DO make sure that where a claim makes reference to a study or survey, the relevant study or survey is publicly available and accessible to consumers.
• DO amend claims to ensure they are compliant.
• DO NOT make false or deceptive statements.
• DO NOT overstate or exaggerate the sustainability or positive environmental impact of a product or service.
• DO NOT make vague and/or general statements that are likely to be misleading.
• DO NOT omit or hide information that enables consumers to make an informed choice.
• DO NOT cherry-pick beneficial aspects and highlight only those so as to mislead.
• DO NOT imply one product is greener or more environmentally friendly if it is not.
• DO NOT use self-made labels or certificates that are likely to deceive by giving the impression of responding to environmental standards endorsed by an official agency

As a final recommendation, remember to seek legal advice before formulating green claims and/or if competitors are engaging in greenwashing.

1. See Directive 2005/29/EC concerning unfair business-to-consumer commercial practices in the internal market, available at: https://eur-lex.europa.eu.
2. The sweep was not only coordinated in the EU but also around the globe under the umbrella of the International Consumer Protection and Enforcement Network
3. See the EU Commission press release, Screening of websites for ‘greenwashing': half of green claims lack evidence (28 January 2021), available at: https://ec.europa.eu.
4. More information about the EU Commission initiative to strengthen the role of consumers in the green transition can be found via the following link: https://ec.europa.eu.
5. See the CMA’s Draft guidance on environmental claims on goods and services (18 May 2021) at: https://assets.publishing.service.gov.uk.
6. More information about the CMA’s consultation is accessible at: https://www.gov.uk.
7. See paragraph 1.7 of the CMA’s Draft guidance on environmental claims on goods and services.
8. Available at: https://eur-lex.europa.eu. Other EU guidelines can be found in the Consumer market study on environmental claims for non-food products (2014), available at: https://ec.europa.eu.
9. Available at: https://www.economie.gouv.fr.
10. Available at: http://www.ukcpi.org.
11. See the ACM’s Guidelines regarding sustainability claims (28 January 2021) at: https://www.acm.nl.

Client Alert 2021-171