More and more often consumers pay attention to how their purchasing decisions affect the environment. This aspect is also taken into consideration by entrepreneurs when choosing a business to contract with. It comes as no surprise, then, that many companies wish to stand out on the market by claiming that they’re „more green”. It’s also understandable that in order to protect the society from misleading practices in this area new regulations are being drafted.

To promote their business or products, market participants employ different methods and tools. Their message may take numerous forms, such as word communictaion, specific colours, graphics or sounds.Messages according to which a product or business is characterised by specific environmnetal impact (let’s call them „environmental claims”, even though they do not need to be in word form) are getting more common each year. Many people remain unaware, however, that such messages may come with certain significant risks.

What is an environmental claim?

In general – it’s any voluntary market communication, irrespective of form, that it takes, which states or suggests that a product or business has certain impact on the environment, e.g. has positive impact, does not have any impact, has lesser impact than its competitors or than it has had before. An example of an environmental claim may be a communication „produced in 75% out of recycled materials”.

GENERIC CLAIMS

Environmental claims include in particular claims that are generic. Generic environmentla claims also concern impact on the environment but do not specify exactly what that impact is. Such claims include e.g. broad, general terms as „eco”, „green”, „sustainable” or even „responsible”.

COMMUNICATION

As we know, communication regarding products or businesses may take different forms. It may be a part of i.a.:

  • trademarked product, brand or company name,
  • trademarked logo, advertising slogan, shape or colour,
  • product appearance subject to design protection,
  • copyrightable marketing clip or phrase

As we can see some environmental claims may be protected by intellectual property rights, such as trademark or copyright. Some may benefit from other means of protection. It is important to remember, however, that regardless of protection granted to the „form”, that an environmental claim takes, using it in trade is not risk-free! For exapmle, being granted trademark protection does not exempt us from the obligation of observing other regulations which apply to its commercial use.

In Polish legal system the boundaries of permissible advertising in regards to environmental impact are drawn predominantly by the unfair competition act and the unfair commercial practices act. Violating the rules set forth in the first act may result e.g. in a lawsuit from other entrepreneurs. Violating the provisions of the second one may result in actions being brought by consumers or even in the intervention of the President of the Competition and Consumer Protection Office – if in a particular case a violation of the collective consumer interest can be established.

Representatives of certain industries or sectors should pay special attention to applicable specific regulations containing additional suitable rules, e.g.:

  • with regards to the automotive sector: directive 1999/94/EC relating to the availability of consumer information on fuel economy and CO2 emissions in respect of the marketing of new passenger cars,
  • with regards to the building sector: directive 2010/31/EU on the energy performance of buildings,
  • with regards to businesses placing on the market energy-related products: regulation (EU) 2017/1369 of the European Parliament and of the Council setting a framework for energy labelling.

PRACTICE

Unsure whether you can communicate something? Clues on how to safely formulate and communicate environmental claims according to legal requirements can be found legal acts, decisions of administrative authorities or judgements of courts, guidelines adopted by them or even in self-regulation. Examples of such resources include guidelines of the European Commission and the Advertising Ethics Code by the Union of Associations Council of Advertising (Commission Notice – Guidance on the interpretation and application of Directive 2005/29/EC of the European Parliament and of the Council concerning unfair business-to-consumer commercial practices in the internal market; version of 7 February 2023).

Having doubts about environmental claims raised by other entrepreneurs?

The European Union is already working on regulation aimed at putting an end to all manner of greenwashing practices! One of the directive projects has been adopted by the European Parliament on 17 January 2024. It should be assumed that legislative changes will strengthen the trend of paying closer attention to the „green marketing” by consumer protection authorities (proposal for a directive of the European Parliament and of the Council on amending Directives 2005/29/EC and 2011/83/EU as regards empowering consumers for the green transition through better protection against unfair practices and better information).

Want to avoid being surprised by new requirements and their intensified enforcement? Take the following steps in the near future:

1) verify your communication regarding environmental impact including phrases used in amrketing, names, graphics and colours,

2) check if you can prove the truthfullness of your claims,

3) adopt an internal procedurę for formulating and communicatin environmentla claims,

4) commission appropriate research or analyses,

5) review your intellectual property rights’ portfolio,

6) if needed – start working on a rebranding strategy.

Thanks to sensible, dependable and transparent green communication you can benefit greatly! How?

✓ by avoiding reservations from market regulators,

✓ by limiting the risk of disputes with competitors and

✓ by taking advantage of increased demand for „green” products!