In the Frankfurter Allgemeine Zeitung, our partner Dr Yorick Ruland writes about the latest legal developments in the field of greenwashing.
A German confectionery manufacturer advertises with the slogan "climate-neutral", but a review shows that production is not CO2-neutral at all. An explanation of the specific meaning of the term used would have been necessary here. This case decided by the Federal Court of Justice epitomises the phenomenon of greenwashing, in which companies exaggerate their environmental friendliness in order to gain a competitive advantage.
In future, the EU wants to prevent such abuse before it happens - with two complementary directives on sustainability-related advertising. The Empowering Consumers for Environmental Change Directive (EmpCo Directive), which came into force at the beginning of the year, standardises the inadmissibility of general environmental claims. The Green Claims Directive, on the other hand, is intended to set out concrete guidelines for the permissibility of explicit environmental claims as soon as possible. The Council of the European Union recently adopted its position on the latter. This forms the basis for negotiations with the European Parliament on the final version, which are expected to begin in the new legislative period. However, Federal Minister of Justice Marco Buschmann (FDP) rejects in particular the certification procedure provided for in the Green Claims Directive and argues that existing competition law is sufficient to penalise misleading practices.
It is true that the Unfair Competition Act (UWG) prohibits misleading advertising. However, enforcement is often laborious and time-consuming. In addition, competitors or consumer organisations must actually take action against infringements, which does not always happen in practice. In contrast, the controversial certification procedure stipulates that environmental advertising claims must first be verified by an independent and certified environmental expert. This reverses the burden of proof: companies must prove that their claims are substantiated. This can have a deterrent effect and encourage companies to only make well-substantiated environmental claims. In addition, the requirements are to be largely enforced by national authorities. This is therefore a completely new regulatory approach, the enforcement of which is not dependent on resistance from competitors or consumer protection organisations.
However, it has been criticised that the plans would lead to a considerable increase in bureaucracy that would be impossible to cope with - both in terms of the shortage of skilled workers and empty budgets. In addition, the complex certification procedures could lead to a considerable cost burden for companies, ultimately causing them to refrain from sustainability endeavours.
Despite this criticism, the approach of making greenwashing significantly more difficult in this way is to be welcomed. Consumers should be able to be sure that a product advertised as environmentally friendly is actually environmentally friendly. Consumer protection demands this. Moreover, this is the only way that the transition to a climate-neutral economy can succeed - in other words, if companies make the necessary sustainability efforts and consumers choose their products based on reliable information. When finalising the directive, however, care must be taken to ensure that it can be implemented and that the interests of economic players are also sufficiently taken into account. For example, an unsustainable cost burden for companies can easily be avoided by (already planned) exemptions for smaller companies.
You can find the online article here (in German): The EU takes aim at greenwashing (faz.net)
