Environmental advertising claims, so-called green claims, have been a popular means of positioning products, services or companies as sustainable or particularly environmentally friendly for years. However, with the growing importance of sustainability, the legal requirements for the verifiability and transparency of such claims are also increasing. Comprehensive new regulations are now imminent at EU level, which companies should urgently keep an eye on.
Green claims: Advertising with the environment
Green claims are statements that suggest that a product or company has a positive impact on the environment – for example by using terms such as “climate neutral”, “environmentally friendly” or “sustainable”. Precisely because such statements have a strong impact on consumer behaviour, they often have a high potential to mislead. German case law therefore already requires clear, truthful and immediately comprehensible consumer information. Anyone who makes misleading statements is acting unfairly.
The central requirement is that environmental claims are not only effective in advertising, but can actually be substantiated. Information to explain ambiguous terms must be provided directly in the advertising itself. Clarification exclusively through downstream sources of information, for example on websites, is generally not sufficient.
New regulatory framework through the EmpCo Directive
With the EmpCo Directive (2024/825) adopted in February 2024, the European Union is tightening up unfair competition law and creating a new regulatory framework to effectively counter misleading environmental claims. The directive amends the Unfair Commercial Practices Directive (UCP Directive) and the Consumer Rights Directive and places significantly higher requirements on the admissibility of green claims in particular.
New terms and definitions in the UWG
The central innovation is the introduction of several new definitions in Article 2 of the UCP Directive:
- “Environmental claim”: any commercial statement which states or implies that a product, brand or company has a positive or no impact on the environment or is more environmentally friendly than others.
- “General environmental claim”: An unspecified environmental claim, such as “environmentally friendly” or “green”, made without direct explanation in the same medium.
- “Sustainability label”: Voluntary public or private trust mark that emphasises environmental or social characteristics. In future, such a label will only be permitted if it is based on a certification system.
- “Certification system”: A system for third-party verification that fulfils certain requirements (e.g. public accessibility of the criteria, possibility of withdrawal in the event of violations, objective verification procedure).
New misleading offences
The Directive also expands the misleading nature of the offence and makes it “greener”, so to speak. Misleading statements or other statements that are likely to deceive as to the essential characteristics of a product are deemed to be misleading. An essential characteristic is, for example, the quality of a product. In future, ecological and social characteristics, accessories and circularity aspects such as durability, reparability or recyclability will also be considered material.
According to the new regulation, it is particularly misleading to make an environmental claim about the future environmental performance of a product or company if this is not underpinned by clear, objective, publicly visible and verifiable commitments. Such commitments must be set out in a detailed and realistic implementation plan that includes measurable and time-bound targets as well as other relevant elements – such as the allocation of internal resources. In addition, a regular review by an independent external expert is required, whose findings must be made available to consumers.
The directive also expands the so-called “blacklist” of commercial behaviour that should always be prohibited towards consumers, including, for example
- displaying a sustainability label that is not based on a certification system or has not been set by government bodies,
- making a general environmental claim where the trader cannot demonstrate the recognised environmental excellence to which the claim relates,
- making a claim based on offsetting greenhouse gas emissions and stating that a product has a neutral, reduced or positive impact on the environment in terms of greenhouse gas emissions,
- as well as numerous other incorrect or non-fulfilment of information obligations.
New information obligations towards consumers
The EmpCo Directive also introduced extensive information obligations into the Consumer Rights Directive. These relate not only to traditional goods, but also to digital content and services. In future, companies must provide clear and comprehensible information about environmentally friendly delivery options. The already existing obligations will be expanded to include information on the existence of statutory warranty rights. In future, the use of so-called “harmonised notices” will be mandatory. This is a model yet to be drawn up by the Commission, according to which the information must be prepared.
Similar requirements apply to information on the existence and scope of commercial durability guarantees. The directive refers to this as “harmonised labelling”. The commercial guarantee of durability goes beyond the statutory warranty and is already known as a term from the German Civil Code. Companies that offer such a guarantee for a period of more than two years must in future present it transparently and in accordance with a model specified by the Commission.
In addition, information on software updates is mandatory for digital products and services. In particular, consumers should be informed about how long a product will be provided with free functional and security updates.
Also new is the obligation to indicate the so-called repairability value of a product or – if this is not available – the costs and possibilities of a repair. This is modelled on the French “Indice de réparabilité” model, which has been in force since 2019. The reparability value is intended to quantify the reparability of a product based on defined criteria.
Timetable for implementation
The EmpCo Directive was adopted on 28 February 2024. The EU member states now have until 27 March 2026 to transpose the requirements into national law. The new regulations will then be binding and directly applicable from 27 September 2026, meaning that companies should adapt their advertising and information strategies in good time.
Green claims remain relevant
In addition to the EmpCo Directive, a separate Green Claims Directive is currently undergoing internal consultation at EU level. The aim is to counteract greenwashing in an even more targeted manner and to further concretise the requirements for environmental claims. In particular, it is envisaged that all green claims must be substantiated and based on objective criteria. In addition, companies are to be obliged to provide further information – for example via QR codes or links – so that consumers can independently understand and verify the claims.
And now?
Green marketing remains possible, but requires greater care than ever before. Companies are well advised not to view the new requirements as a mere formality, but as an opportunity to communicate their sustainability strategy credibly. Companies that are transparent and can substantiate their statements will stand out from the competition – and at the same time reduce the risk of legal disputes.