Green Claim: EU Action to Protect Consumers and Environment

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"Green claim" - or environmental claim - is an expression that includes any non-statutory message or representation that states or implies that a product, brand or economic operator has a positive or zero impact on the environment, or is less harmful to the environment than others, or has improved its impact over time. In the more general context of greenwashing, these are therefore messages referring specifically to environmental implications aimed at appealing to the green-conscious consumer. Although the use of green claims is on the rise, a public consultation on environmental performance launched in 2020 revealed the low level of trust consumers place in these kinds of claims and, therefore, the need for greater public scrutiny to ensure green communications are more reliable.

In 2023, the European Commission proposed the Directive on the Attestation and Disclosure of Explicit Environmental Claims, i.e. green claims in text form or in an environmental label. The initiative runs in parallel with the Greenwashing Directive approved in February 2024 (applicable from September 2026) and shares some of its principles such as the absolute prohibition of claiming a neutral, reduced or positive environmental impact on the basis of the use of carbon credits alone. The aim of the Directive - currently under discussion - is not only to sanction unlawful claims, but to prevent them by requiring companies to carry out a technical assessment and to turn to an external verifier for independent certification: increasing reliability to guide consumption and protect the environment. At the same time, an attempt is made to limit the proliferation of environmental labels that are opaque and poorly understood by consumers.

The centrepiece of the proposal is the obligation for companies to substantiate explicit green claims through a scientifically reliable assessment. This assessment - to be renewed every five years - must specify whether the claim refers to the entire product or to a part, must be based on verifiable and widely recognised scientific evidence, must take into account all significant environmental aspects, must show that the claim is not equivalent to legal obligations, must indicate whether the product performs significantly better than the industry average, must assess whether the positive environmental impact could lead to damage in other respects, must distinguish between reductions and removals of greenhouse gas emissions as well as indicate residual emissions. Due to the costs involved in carrying out these assessments, there is an exemption for micro-enterprises.

The proposed directive also intervenes on the way green claims are communicated in order to increase their understanding by the target audience. In addition to prohibiting the communication of explicit environmental claims that have not been adequately attested, there is an obligation to provide the consumer with all information about the environmental claim and its attestation in physical or digital form. This additional data includes the relevant environmental aspects, the scientific studies and calculations used to measure the impact, the certificate of compliance issued by the independent verifier, all in a summary that is clear and understandable to consumers. If the language were too technical, the informative purpose could not be achieved. With regard to highly polluting industries, claims must be formulated in relative terms in order to bring out the overall negative impact on the environment.

According to the Commission's approach, the performance of a 'biased' attestation would not be sufficient to guarantee the correctness of green claims. It is therefore required to be carried out by a party that meets the requirements of independence, competence and absence of conflicts of interest. Before the verification is completed, the environmental claim cannot be made public. In the event of a positive outcome of the verification, the verifier draws up a certificate stating conformity with the requirements of the Directive that is valid in all Member States. Although there is a double level of control, the possibility remains for the authorities to assess the correctness of the environmental claim and - in the case of an offence - to impose sanctions. The exemption for micro-companies also applies to this stage, in addition to a simplified verification system to cover less complex assertions.

Although the Green Claims Directive is still at the discussion stage, the claims are being scrutinised by the authorities under the general rules on unfair commercial practices. The AGCM recently announced that it had conducted a moral suasion initiative against two companies that used generic green claims. In addition to the existing sanctioning framework, the proposal foresees that Member States identify specific measures to be applied in the case of violations that include fines to deprive those responsible of the economic benefits derived from the violations, confiscation of the proceeds received from a transaction with the products concerned, and temporary exclusion from public procurement procedures and access to public funding. In light of the strong regulatory impact, the Directive - if approved - will enter into force in a differentiated manner: the ordinary 30 months from entry into force is increased to 42 in the case of small companies.