Green Claims: new measures against misleading practices

Dir. 2024/825/EU published in the Official Journal of the European Union on 6 March 2024, through the amendment of Dir. 2005/29/EC and 2011/83/EU introduces new provisions that concern the empowerment of consumers for the green transition, through the improvement of protection from unfair practices and information.

Each Member State of the European Union will have to adopt the necessary measures to transpose this Directive into its national law by 27 March 2026 and the provisions contained therein will apply from 27 September 2026.

The objectives of the Green Claims Directive

To contribute to the proper functioning of the internal market, based on a high level of consumer and environmental protection, and to make progress in the green transition, it is essential that consumers can make informed purchasing decisions, thus contributing to more sustainable consumption patterns.

To this end, economic operators have the duty to provide clear, relevant and reliable information.

Therefore, it has become necessary to introduce specific rules in European consumer protection legislation to combat unfair commercial practices that deceive consumers and prevent them from making sustainable consumption choices, such as:

• practices associated with the premature obsolescence of goods;
• misleading environmental claims (greenwashing);
• misleading information on the social characteristics of products or businesses of economic operators;
• non-transparent and non-credible sustainability labels.

Misleading commercial practices and omissions

Dir. 2024/825/EU amends Art. 6 (Misleading commercial practices) and Art. 7 (Misleading omissions) of Dir. 2005/29/EC of the European Parliament and of the Council, in order to combat commercial practices that are considered misleading and, therefore, prohibited.

By amending lett. b) of the aforementioned Art. 6, environmental and social characteristics and aspects relating to circularity are added to the list of main characteristics of a product with respect to which the practices of an economic operator may be considered misleading.

A further amendment concerns environmental claims, in particular those relating to climate, which increasingly refer to future performance for the purposes of the transition to carbon neutrality or climate neutrality, or to a similar objective, by a given date. With such claims, economic operators give the impression that by purchasing their products, consumers contribute to a low-carbon economy. In order to ensure fairness and credibility of environmental claims, paragraph 2 of the aforementioned Art. 6 is amended, prohibiting those that are not supported by clear, objective, publicly available and verifiable commitments and objectives set by the economic operator, as well as defined in a detailed and realistic implementation plan indicating how such commitments and objectives will be achieved. Furthermore, the misleading commercial practices referred to in the aforementioned paragraph 2 are added to the misleading commercial practices referred to in the aforementioned paragraph 2, that of advertising as advantages for consumers characteristics that are irrelevant and not directly linked to any characteristic of the specific product or company and that could lead consumers to believe that they are more advantageous than other products or companies of the same type, (for example by communicating that a particular brand of bottled water is gluten-free or that sheets of paper do not contain plastic).

Comparing products based on their environmental or social characteristics or aspects relating to circularity, such as durability, reparability or recyclability, is an increasingly widespread marketing technique that could be misleading for consumers who are not always able to assess the reliability of such information. In order to prevent such comparisons from misleading the consumer, Art. 7 of Directive 2005/29/EC is amended to require economic operators to provide consumers with information on the method of comparison, the products compared and the suppliers of those products, as well as on the measures put in place to keep the information up to date.

Sustainability labels and environmental claims

Sustainability labels can cover many characteristics of a product, process or company; therefore, it is essential to ensure their transparency and credibility and to prohibit their display where they are not based on a certification system or are not established by public authorities.

It follows that, before displaying a sustainability label, the economic operator should ensure that, according to the terms of the certification system available to the public, that label meets minimum conditions of transparency and credibility, including the existence of an objective check of compliance with the requirements of the system. Such monitoring should be carried out by a third party whose competence and independence from both the scheme owner and the economic operator are guaranteed on the basis of international, Union or national standards and procedures.

In cases where the display of a sustainability label involves commercial communication that suggests or gives the impression that the product has a positive or zero impact on the environment or is less harmful to the environment than competing products, that sustainability label should also be considered as an environmental claim.

To this end, it is prohibited to make a generic environmental claim (such as “environmentally friendly”, “eco-friendly”, “Green”, “nature-friendly”) in the absence of recognised excellence in the environmental performance relevant to the claim. For example, the claim “climate-friendly packaging” would be a generic claim, while the claim that “100% of the energy used to produce this packaging comes from renewable sources” would be a specific claim that would not be subject to this prohibition.

A further misleading commercial practice that should be prohibited is the making of an environmental claim concerning the product as a whole or the activity of the economic operator as a whole when in reality it concerns only a certain aspect of the product or a specific element which is not representative of the activity of the economic operator. This would apply, for example, if a product were marketed as ‘made from recycled material’ giving the impression that the whole product was made from recycled material when in reality only the packaging was made from recycled material, or if an economic operator gave the impression that it uses only renewable energy sources when in reality several of the economic operator’s installations still use fossil fuels.

Planned early obsolescence

Planned early obsolescence is defined as a commercial policy involving the deliberate planning or design of a product with a limited lifespan so that it becomes prematurely obsolete or ceases to function after a specified period or after a predetermined intensity of use.

Dir. 2024/825/EU provides that the amendments to Directive 2005/29/EC also affect the various practices associated with early obsolescence which have an overall negative impact on the environment, given that they lead to an increase in waste and a greater use of energy and materials.

Therefore, the practice of inducing the consumer to replace or replenish consumables of the product earlier than would otherwise be necessary for technical reasons should be prohibited. Such practices lead consumers to mistakenly believe that goods will no longer function unless the consumables they contain are replaced, and thus to purchase more consumables than necessary (for example, the practice of prompting consumers, through printer settings, to replace ink cartridges before they are actually empty, in order to encourage them to increase their purchase of cartridges).