On 22 March 2023 the European Commission published a proposal for a Directive on Green Claims affecting commercial communications that associate products/services with environmental or ecological benefits.

The proposal complements and specifies an earlier proposal for a Directive on empowering consumers for the green transition[1], and is thus part of a framework of strategic initiatives and action policies adopted by the European Union (EU) in support of the circular economy, and aims to decrease the impact of climate change in order to achieve climate neutrality.

The strategy pursued by the EU cannot disregard the active participation of consumers in the ecological transition, which requires their adequate protection against unfair commercial practices that prevent them from making informed and sustainable choices. Such practices include greenwashing, in which companies make false environmental declarations in the context of their communication strategies, aimed at building a deceptively positive image of the company as to its environmental impact, with the clear objective of capturing the attention and interest of consumers.

In 2020, the Commission carried out a study of more than 150 environmental claims for a wide range of products and found that more than 53% of them were too “vague, misleading or unfounded”, and that 40% were not supported by adequate technical and scientific evidence. These data show that companies/traders have an increasing interest in providing misleading environmental information on their products/services, to the detriment of consumers wishing to make more sustainable and responsible purchasing choices, and of virtuous companies suffering from unfair competition.

From the need to contrast this increasingly widespread phenomenon comes the provision of specific rules on the subject, aimed at setting minimum requirements for the verification of environmental claims adopted by traders and thus improving the reliability of the information conveyed to consumers, facilitating their choice of products and/or services that offer better environmental performance.

First, the proposal aims to regulate the voluntary environmental claims[2] of the companies concerning the environmental impact and performance of their products/services, providing that they be clear and adequately substantiated. Inter alia, voluntary declarations will have to specify whether they relate to the company’s entire production or only to a particular product, one of its components, or one of its life cycle stages, in order to “make it possible to identify the environmental impacts and environmental aspects for the product or trader that jointly contribute significantly to the overall environmental performance of the product or trader”. Furthermore, voluntary claims will have to be validated by widely recognised scientific evidence, and evaluated by independent, accredited, verifying organisations, which will decide whether to issue a certificate of conformity valid throughout the EU.

Should the proposal become law, it would no longer be possible to use vague and ambiguous claims such as “climate neutral”, “carbon neutral” or “100% CO2 compensated”, if they do not meet all the requirements of the Directive. Indeed, traders will be required to avoid claims expressed in broad or absolute terms, instead having to circumscribe to the precise environmental benefit claimed, which, of course, will have to be properly verified and supported by technical evidence.

The proposed Directive also regulates so-called environmental labels and their schemes, such as the EU Ecolabel and its national equivalents, awarded to products and/or services that are produced and marketed with a reduced environmental impact. The EU has noted that more than 200 environmental labels are currently in use and their further proliferation could lead to consumer confusion, as well as to a loss of value of existing labels. To address this, the Commission has advanced the possibility of preventing new public labelling schemes from being proposed unless they are developed exclusively within the EU. As a result, any new private scheme will have to prove that it pursues more ambitious environmental objectives than existing ones, while obtaining prior approval in order to be officially authorised.

Naturally, the proposal also regulates the enforcement of the provisions contained therein, whose compliance is to be ensured by the Member States by means of appropriate control systems and by the provision of penalties, with varying amounts depending on the nature and seriousness of the violations ascertained.

The proposal will soon be assessed by the European Parliament and the Council for their joint approval and, in the event of a positive outcome, the Member States will have to incorporate the Directive into their respective legal systems to ensure its uniform application within the EU territory.

Currently in Italy there are no specific legislations on environmental claims, so they are regulated by the general provisions of the Consumer Code on unfair commercial practices, those of the Civil Code on unfair competition, as well as the regulations on misleading advertising. The framework is completed by the European Directive 2005/29/EC and the Guidance on the implementation/application of directive 2005/29/EC on Unfair Commercial Practices issued by the European Commission on 25 May 2016, which contains useful guidelines on green claims, for example that they be formulated “in a clear, specific, accurate and unambiguous manner”.

Additionally, a provision specifically dedicated to commercial communications of an environmental nature is contained in Article 12 of the Italian Code of Self-Discipline for Commercial Communications, according to which “marketing communication that claims or evokes benefits of an environmental or ecological nature must be based on truthful, relevant and scientifically verifiable data”.

The above-mentioned provision was referred to by the Court of Gorizia in the first (and only) Italian court ruling on greenwashing[3]. In this landmark decision, the judge acknowledged that generic expressions such as “environmentally friendly”, “natural choice”, “100% recyclable” constitute to all intents and purposes misleading advertising when they are not clear, verifiable or supported by solid scientific evidence.

In the context of fragmented national regulations, the Green Claims Directive could therefore be an effective tool to limit greenwashing and related unfair commercial practices that are growing exponentially in parallel with the environmental awareness of the consumers.

[1] European Commission proposal of 30 March 2022 amending Directives 2005/29/EC on unfair commercial practices and 2011/83/EU on consumer rights.

[2] On the other hand, the proposed Directive does not cover voluntary declarations that are already regulated by other EU rules, such as the EU Ecolabel, as the relevant existing legislation already guarantees their reliability.

[3] Court of Gorizia, order of 25 November 2021 (Alcantara S.p.A vs. Miko S.r.l.). The order was then appealed by Miko S.r.l. and overturned by the Court of Gorizia in March 2022, on the basis that Alcantara had been unable to provide any evidence that Miko’s environmental claims had resulted in a risk of loss of customers for Alcantara.