Green claims: the most notorious cases already decided in Italy

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In the field of communication and the broader context of greenwashing, green claims are all expressions that convey the environmental qualities of a product. The importance of environmental communication prompted the European Union to adopt a Directive on greenwashing and to discuss one - not yet approved - on green claims. But apart from these interventions, the legislative scenario already includes many regulations that allow action to be taken against unlawful environmental claims. This is why a number of well-known greenwashing cases have already been decided in Italy, thanks to which it is possible to concretely verify which initiatives are problematic or - however debated - admissible.

The green claims are part of the category of advertising claims and have to comply with the general rules laid down to protect commercial communication. These rules are of various kinds, both state (binding for anyone) and self-regulatory (binding for those who choose to adhere to them), which share some basic rationales. Assertions must be presented clearly, specifically and unambiguously, to leave no room for interpretation. The data supporting the assertions must be true, relevant and scientifically verifiable: otherwise, a green claim would be without foundation. Generic references must be avoided and, instead, the specific nature of the product must be taken into account. Finally, an element of major importance that is also emphasised in the European regulations, the entire life cycle of the product and, therefore, the impact generated on the environment must be taken into account for the purposes of the claim.

The existence of various rules applicable to green claims brings with it the involvement of various actors who may be called upon to decide potential cases of greenwashing. Firstly, the rules on unfair commercial practices that protect consumers' freedom to make informed commercial decisions apply. The Authorità Garante per la Concorrenza ed il Mercato can then intervene by ordering the interruption of the unlawful initiative and adopting fines. At the same time, the advertising activity itself could damage the commercial position of a competitor that is entitled to take legal action before a court by invoking the rules on unfair competition. Finally, green claims could be challenged before the Istituto di Autodisciplina Pubblicitaria which, although operating with a voluntary membership system, represents a central point in the field of lawful commercial communication.

A first category of unlawful green claims concerns peremptory assertions that, by failing to take into account the inherent environmental impact of any activity, represent to the public an inherently incorrect situation. This is the case of an energy supplier that claimed to distribute 'zero-emission gas' and promised, therefore, to have 'zero-impact light and gas' (IAP, injunction 9/2021). According to the IAP's Supervisory Committee, these claims conveyed "exorbitant promises, likely to mislead consumers", crediting "the erroneous belief that burning gas at home produces no emissions" when in fact "a production activity with no impact on the environment is not feasible, except in terms of compensation".

Comparative advertising - which can also include green claims - is possible if it is based on the comparison of goods that satisfy similar needs and as long as it concerns essential, relevant, verifiable and representative features. Recently, the trade association of the mineral water industry challenged before the Court of Milan the advertising campaign of a tap filter manufacturer that used expressions such as 'so you can enjoy pure water without compromising your environmental ethics' and 'it takes 7 litres of water to produce one in a bottle'. While upholding other objections, the Court found the commercial communications that identified bottle plastic as polluting were legitimate, even though it was 100% recyclable PET, since it "in any case represents a risk of environmental pollution, given the economic cost of disposal and recycling".

In 2022, the AGCM sanctioned the owner of an app for booking taxi rides, considering the proposition of a 'clean air fee' to be misleading. A green claim, therefore, embedded in the interface of an app and not in an advertising campaign. The company claimed that the cost of the ride included a contribution applied to 'support activities to offset emissions generated by the use of our service', but the claim was in fact generic. Upon inspection, the Authority pointed out how it was not adequately clarified that only a part of the proceeds would be invested for the improvement of the environment, moreover "in the future and in an absolutely uncertain and undetermined manner". The deceptiveness lay, therefore, mainly in the emphasis placed on a focus on the environment in an excessively vague and unsubstantiated manner.

The possibility of using green claims for intrinsically polluting products is a matter of debate. In a very old decision, the IAP had denied the possibility of appropriating a positive environmental connotation merely because a chemical product was less harmful than others. Recently, the AGCM had sanctioned a diesel fuel producer who - alleging a reduction in emissions - had claimed 'aid to protect the environment' on the grounds that a diesel product was inherently highly polluting. However, a few months ago, the Council of State overturned this reading, pointing out the legitimate use of green claims also in relation to products that are to some extent polluting "but which have a lesser impact on the environment than others". If done correctly, this form of communication in fact allows the consumer to make informed choices in the green sphere.