Permissible content of environmental advertising claims: draft of the EU Green Claims Directive
Current situation in Germany
In Germany, the permissible content of environmental advertising is currently mainly determined by the general requirements of the Unfair Competition Act (UWG). To date, there is no supreme court case law in this area, but there are a large number of sometimes finely differentiated requirements from the higher courts. VOELKER recently reported on three recent rulings: Here, the courts had to decide under which specific conditions companies may advertise with the term "climate neutral" and when consumers must be informed - for example, about the criteria for assessment as climate neutral or the seals and certificates used.
Planned changes in the draft EU directive
The EU Commission's draft directive now goes well beyond these requirements. Probably the most important regulation in it stipulates that environmental advertising claims must be checked, approved and certified by an independent testing body for conformity with the directive before being used. Only micro-enterprises with < 10 employees and a maximum annual turnover of EUR 2 million are largely exempt from this. According to the current legal situation, advertising claims are reviewed if necessary after use (possibly in court), but not preventively.
According to the directive, advertising with environmental claims should only be permitted and certifiable if:
A substantiation together with (scientific) evidence for environmental claims has been carried out by the company and the information to substantiate the environmental impact is attached, for example via a leaflet, hyperlink or QR coder
The advertised properties are not merely attributable to legal requirements.
Not just a blanket environmental claim is made.
And, if necessary, information on use is available to reduce environmental impacts.
There are also further detailed requirements. At the heart of the draft is the planned obligation for companies to provide justification. To this end, the draft regulates in detail that only those statements can be made for which it is ensured that the statements (also for the life cycle) are demonstrably correct, whereby this must be checked regularly with regard to any changes. For many companies, these requirements are likely to be difficult, cost-intensive and probably only possible with the help of external service providers.
Advertising with eco-labels and certificates
The draft directive also provides for additional requirements regarding environmental seals, labels and certificates. "Self-certification" by the companies themselves will therefore not be permitted in future. The number of such eco-labels is to be limited overall outside of public systems and only permitted if the labels offer particular added value and provide transparent information about this.
Outlook
The draft is now being coordinated by the legislative bodies. Adoption seems to be envisaged as early as 2024. There may therefore still be changes. If the directive is adopted as planned, the German national legislator will also need to pass a transposition law.
Summary
The current draft of the European Commission's "Green Claims" Directive provides for far-reaching tightening of the requirements for environmental claims. Environmental claims and environmental seals that have been frequently used up to now would therefore be largely illegal.
In future, before an environmental claim can be used, it would have to be checked, approved and certified by an independent testing body to ensure that it complies with the directive, along with the associated evidence.
However, the directive has not yet been adopted, so there may still be changes. Even after adoption, a national legislative act is still required for implementation. However, the planned changes should already be anticipated in the long-term planning of advertising measures and environmental certifications, as these could otherwise prove to be unlawful in the future.