Prepared by Paola Furiosi and Francesca Caliri
On March 26, Directive (EU) 2024/825 (the “Directive”) on “green claims”, meaning the statements aimed at declaring (or even just hinting at) the lower or reduced environmental impact of the product and/or service offered on the market, officially came into force.
Greenwashing: definition and regulatory updates
The aim pursued by the Directive is to contrast the so-called “greenwashing”, meaning the practice (which has become widespread in recent years) by which brands and individuals present their activity on the market as more ecological and sustainable than it actually is, using communication methods – such as advertising and marketing – aimed at positively influencing public opinion and, consequently, directing consumers’ purchasing choices, while not putting in place significant measures to reduce their environmental impact.
The greenwashing therefore represents an unfair commercial practice and, for this reason, the Directive has integrated the list of misleading practices in Annex I of Directive 2005/29/EC concerning unfair business-to-consumer commercial practices in the internal market, including 5 additional conducts related to the practice under examination, namely:
- “displaying a sustainability label that is not based on a certification scheme or not established by public authorities” (such as an unofficial symbol similar to the so called “Ecolabel logo”);
- “making a generic environmental claim (such as “eco-friendly”) for which the trader is not able to demonstrate recognized excellent environmental performance relevant to the claim”;
- “making an environmental claim about the entire product or the trader’s entire business when it concerns only a certain aspect of the product or a specific activity of the trader’s business” (for example, “100% biodegradable”, when the product is only partially biodegradable);
- “Claiming, based on the offsetting of greenhouse gas emissions, that a product has a neutral, reduced or positive impact on the environment in terms of greenhouse gas emissions” (such as “net-zero emissions”); and
- “Presenting requirements imposed by law on all products within the relevant product category on the Union market as a distinctive feature of the trader’s offer” (such as “cruelty free” for a cosmetic product).
The premature obsolescence of products
Furthermore, in amending Directive 2011/83/EU on consumer rights, the Directive also aims to contrast the premature obsolescence of products, meaning that such products are designed in a way that their life cycle is ab origine limited in time, leading to the need to buy a new product of the same kind or the next model. In this sense, the Directive is intended to prevent the spread of false information about durability, repairability, and recyclability of goods, with the aim of reducing the amount of waste produced and, consequently, improving environmental impact.
For example, it will be forbidden to encourage the replacement of the good before its actual exhaustion, just as it will no longer be possible to indicate that a product will last up to a certain number of uses, where this is not true in relation to normal use of the good. Furthermore, it will be mandatory to give greater prominence to warranty information and, where a longer warranty period than the 24 months from delivery provided ex lege is envisaged, it will be necessary to highlight this extension by affixing a label that will be created ad hoc.
The European Green Deal and the impact of the Directive on companies’ business
The Directive is part of the “European Green Deal”, a package of strategic measures aimed at – inter alia – transforming the energy sector and promoting sustainable production and consumption models, aiming to make the European Union the first climate-neutral territory by 2050. In this scenario, the fight against false communications about sustainability is a fundamental piece of the holistic and integrated approach adopted by the EU to achieve its objectives, as it helps to encourage the implementation of a more (and/or truly) sustainable production chain.
At a national level, the new provisions will presumably be incorporated into Legislative Decree 206/2005 (the “Consumer Code”). Indeed, by March 27, 2026, Member States will be required to adopt and make known the necessary measures to comply with the Directive, whose provisions will be applicable from September 27, 2026.
The practices that today has officially been established as unlawful in a legislative text were, however, already previously contrasted – in addition to the ordinary courts – both by the Authority Guarantor of Competition and the Market (AGCM), which has repeatedly traced the green claims to unfair commercial practices, both by the Institute of Advertising Self-regulation (IAP), which in its own Code of Marketing Communication Self-Regulation provides, since 2014, a specific provision aimed at contrasting environmental claims – direct and indirect – that are not based on truthful, relevant and scientifically verifiable data.
For companies operating in the current context, ensuring adherence with the Directive is not only a matter of regulatory compliance, but also of credibility. There are numerous market studies that show how consumers are increasingly aware and sensitive to the issue of sustainability, preferring eco-friendly and brand really committed to environmental protection and that communicate this commitment to the public in a clear and transparent way.
In this perspective, the role played by lawyers specialized in intellectual property and advertising is essential in supporting companies towards the green transition and preventing not only legal risks, but also reputational ones, such as the loss of customer trust and the decrease in the value of their own brand, with consequent economic damages that derive from it.
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