On March 30, 2022, the European Commission presented several proposals for texts aimed at developing the circular economy while protecting consumers.
One of them concerns the establishment of a legal framework in EU law for environmental claims.
Indeed, these claims do not have an European legal framework, nor even a real definition in national law.
The definition of environmental claims
In this sense, the Commission proposes, among other things, to define environmental claims as “any message or statement that is not compulsory under Union or national law, including text, an image, a graphic representation or a symbol, in any form whatsoever, including a label, a trademark a corporate or product name, in the context of commercial communication, that states or suggests that a product or professional has a positive or zero impact on the environment, is less damaging to the environment than other products or professionals, or has improved its environmental impact over time. ”
Environmental claims falling under “deceptive marketing practices”
Misleading commercial practices are prohibited under EU law.
A commercial practice may be misleading in terms of its content, in particular if it “contains false information and is therefore untruthful or in any way, including its general presentation, misleads or is likely to mislead the average consumer, even if the information presented is factually correct, in relation to one or more of the following aspects, and in either case causes or is likely to cause the average consumer to take a transactional decision that he or she would not have taken otherwise”
The commission proposes to clarify that such misleading information may relate to: “the main characteristics of the product, such as its availability, benefits, risks, performance, composition, environmental or social impact, accessories, durability, repairability, after-sales service and complaint handling, how and when it was manufactured or provided, delivery, fitness for purpose, use, quantity, specifications, geographic or commercial origin or the results that can be expected from its use, or the results and essential characteristics of tests or inspections performed on the product.”
A commercial practice may be misleading in context “if, taking into account all its features and circumstances, it causes or is likely to cause the average consumer to take a transactional decision that he or she would not otherwise have taken and that it involves”.
The Commission proposes to include among misleading marketing claims:
-environmental claims about future environmental performance without clear, objective and verifiable commitments and without an independent monitoring system
-advertising of consumer benefits considered to be common practice in the market concerned
Environmental claims considered as “misleading omissions”.
The Commission proposes to refine the prohibition of misleading omissions, which are prohibited under EU law, by specifying that the omission must relate to “material information” that the average consumer needs to make an informed commercial decision.
Environmental claims considered “unfair commercial practices in all circumstances
The Commission proposes to include among the commercial practices deemed unfair in all circumstances, prohibited under EU law:
-environmental claims for which the trader is not able to demonstrate the excellent environmental performance recognized in connection with the claim
-environmental claims relating to the product as a whole, when in fact they only concern one of the product’s characteristics
This proposal for a directive aimed at establishing a European legal framework for environmental claims therefore shows the desire to develop an even broader European legal framework to prevent “greenwashing”.
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