2.5.5. The application of the Directive's general provisions to misleading environmental claims

This provision applies to commercial communications including environmental claims (such as text, logos, pictures and use of symbols). It provides for a case-by-case assessment of the practice, the content of the environmental claim and its impact on the average consumer's purchasing decision.

Two different situations may occur:

(i) Objective misleading practice: the environmental claim is misleading because it contains false information and is therefore untruthful, in relation to one of the items of the list provided for by Article 6(1).

Example: use of the term "biodegradable" when that is not the case (e.g. on a product for which no tests have been carried out); use of the term "pesticides-free" when the product actually contains some pesticides.

In conjunction with Article 12 of the Directive, this means that any environmental claims must be made on the basis of evidence which can be verified by the competent authorities.

(ii) Subjective misleading practice: the environmental claim is misleading because it deceives or is likely to deceive the average consumer, even if the information contained therein is factually correct.

This situation relates more to the way environmental claims are presented and put in context and the impression the commercial communication produces on consumers, suggesting him an environmental benefit which may turn out to be misleading.

Example: advertisement showing a car in a green forest; use of natural objects (flowers, trees) as symbols; use of vague and general environmental benefits of a product ("environmentally friendly, green, nature's friend, ecological, sustainable"); greening of brand names or of a product's name.

Example: a manufacturer of a washing machine claims that his new model reduces water usage by 75%. This may have been true in certain laboratory conditions but within an average home environment it only reduces water by 25%.

Example: a food product is claimed to be produced in an environmentally friendly manner, based on a label or certification scheme which in fact only ensures that the farmer complies with the environmental baseline under EU law (cross-compliances).

Example: a French appeal court has confirmed recently that a pesticide labelled as "biodegradable" and "good for environment", where several of the substances contained in the pesticide are still harmful to soil, was misleading advertising[58].

Footnotes

[58] France - Cour d'appel de Lyon, 29 October 2008, Case "Roundup" (Monsanto - Scotts France)

[59] Guidelines for making and assessing environmental claims, December 2000, European Commission - ECA SA, Dr Juan R Palerm.

Links to articles of the Directive

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