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Greenwashing: how to restore the fairness of environmental claims?

More and more companies are highlighting their environmental efforts, but not always in the right way. A number of measures coming into force in 2022 aim to restore fairness to environmental claims.

We remember the products of the 1980s that were "whiter than white". In recent times, we have seen the promotion of "greener than green" products or company policies. This race to "greenwash" blurs the line between companies that are genuinely committed to preserving the environment and those that are riding the wave of ecological transition. The risk is to mislead the consumer and deprive the truly virtuous companies of their competitive advantage.

Greenwashing" consists of claiming or implying that a good has a positive impact or no impact on the environment, or that it is less harmful to the environment than other goods available on the market, when this is false or not scientifically verified.

A study published by the European Commission in early 2021 found that out of 350 environmental claims identified on the websites of various companies, almost half of them could be qualified as unfair commercial practices.

Numerous measures, adopted at the initiative of the Ministry of Ecological Transition since 2020, aim to restore the fairness of environmental claims for the benefit of consumers, but also the market.

Environmental claims

The Practical Guide to Environmental Claims, published by the DGCCRF for use by professionals and consumers, currently defines the conditions of use of 15 environmental claims that are among those most frequently used on products (e.g. "sustainable", "ecological", "natural", "recyclable", "responsible", etc.).

An updated version of this guide is expected soon. It should integrate new claims and in particular those targeted by the recent Anti-Waste and Circular Economy laws of February 2020 (Agec law) and Climate and Resilience of August 2021.

Prohibition of the "environmentally friendly" claim

The Agec law has set new constraints on environmental claims:

- It is thus no longer possible to advertise a product as "biodegradable" or "environmentally friendly";

- the use of the terms "recycled" or "compostable" is more restricted;

- Compostable plastic products and packaging must now be labelled "do not throw into the environment".

Ban on the use of "carbon neutral" labels

The Climate and Resilience Act, adopted in August 2021, has for its part banned the use of any carbon neutrality claim in an advertisement for a product or service, unless the advertiser is able to demonstrate an approach to limiting greenhouse gases and offsetting emissions that cannot be avoided.

Strengthening the criminal sanction for environmental claims

The Climate and Resilience Act has strengthened the criminal sanction for environmental claims, by expressly qualifying as a misleading commercial practice the use of false or misleading claims, indications or presentations concerning the environmental impact of a good or service. This also includes the scope of the company's environmental commitments.

The use of misleading environmental claims is a criminal offence, punishable by severe criminal penalties, including imprisonment for individuals and fines of up to €1,500,000 or 80% of the expenditure incurred in making the advertisement.

A competitor could also consider it unfair competition and seek legal action to stop the practice and obtain damages.

Greenwashing initiatives at European level

In the wake of its study in early 2021, the European Commission has analysed several new regulations, including a draft regulation on the obligation to substantiate claims relating to the environmental performance of products and companies. Its adoption by the Commission is expected in the first quarter of 2022, under the French Presidency of the European Union.

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