Thanks to Clara Fallocco for collaborating on this article
On March 22, 2023, the European Commission adopted a proposal for a directive on substantiation and communication of explicit environmental claims and environmental labels (the “Green Claims Directive”).
Said proposal sets forth specific rules to hinder greenwashing and misleading environmental claims by implementing existing principles set out by EU law on consumer protection and complements the Proposed Directive on Empowering Consumers for the Green Transition of March 30, 2022[1].
The abovementioned rules are aimed at ensuring that companies appropriately substantiate environmental claims to allow consumers to make informed purchasing decisions based on reliable claims and labels.
An environmental claim is defined as “any message or representation, which is not mandatory under Union law or national law, […] in the context of a commercial communication, which states or implies that a product or trader has a positive or no impact on the environment or is less damaging to the environment than other products or traders, respectively, or has improved their impact over time[2]”.
The proposal sets some specific requirements in connection with the substantiation of environmental claims, which shall be based on an assessment meeting some specific selected criteria; for example, the assessment shall specify whether the green claim covers only part of the product or all of it and shall rely on widely recognized scientific evidence.
Furthermore, the proposal also sets further requirements for the substantiation of comparative claims as well as the conditions for the communication of environmental claims and comparative environmental claims. For example, the proposal states that comparative environmental claims shall not compare the improvement of environmental aspects or performance of a product to those of another product from the same trader or from a competing trader that is no longer active on the market or from a trader that no longer sells to consumers, “unless they are based on evidence proving that the improvement is significant and achieved in the last five years”.
The proposal also provides rules on environmental labels. In particular, Article 7 states that such labels are subject to the same requirements and verification process established for environmental claims.
Moreover, the proposal sets forth specific requirements for environmental labelling schemes, i.e. certification schemes which certify that “a product, a process or a trader complies with the requirements for an environmental label[3]”, and limits the use of aggregated scores on environmental impacts to claims and labels established at the EU level only.
According to the proposal, Member States are required to set up procedures for verifying compliance with the substantiation and communication requirements concerned, as well as compliance with the requirements for environmental labelling schemes; the verification and certification procedures shall require the involvement of a third-party accredited body.
Furthermore, pursuant to the proposal, Member States shall grant their national authorities the powers of inspection and enforcement necessary to ensure compliance with the Green Claims Directive, including the power to issue effective, proportionate and dissuasive fines to ensure that the provisions of the Green Claims Directive are complied with.
The proposal will now be submitted to the European Parliament and the Council.
[1] Proposal for a Directive of the European Parliament and of the Council 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 of March 30, 2022 (“Proposed Directive on Empowering Consumers for the Green Transition”).
[2] Such definition is provided by Article 1 of the Proposed Directive on Empowering Consumers for the Green Transition.
