week 2 (public law) - ban on misleading commercial practices to fossil fuel advertising Flashcards
(33 cards)
Environmental marketing claims + examples
companies/products claiming their activities/products have some positive environmental qualities
Example: H&M Conscious line
Environmental claims:
□ organic cotton
□ term ‘conscious’ - positive connotations
□ green colour - environmental connotations
Reality:
□ Fast fashion: Fast fashion industry in general by definition very polluting bc oversupply
◊ As many as 40% of clothes made not sold -> go directly to landfills (The Guardian)
- Usually in developing countries -> inequality dimension
- H&M has biggest incorrect environmental marketing claims
Example: Garnier Fructis hair care products
Environmental claims:
□ Claims of 98% naturally derived ingredients
□ stamp looks official
□
Reality:
□ But if you look into details of what ‘naturally derived’ means water counted as naturally derived -> only around 3rd of non-water acc naturally derived (not 98% like claimed) (Loreal)
□ something about molecular stuff being 50% unchanged (Fructis)
-> misleading
Example: Innocence smoothie ad video
Environmental marketing claims:
□ Not about ingredients, but a general good feeling
- Cutesie song
- Environmental slogan: ‘there is no plan b’
- Visuals that create positive environmental impression: people recycling, green colours
□ Environmental messaging
Reality:
□ Innocence uses plastic bottles
- Plastic dangerous for human, animal, plant health
□ Video shows recycling but plastic recycling doesn’t really work
- Most plastic not even going into recycling process
- downcycling not recycling: Plastic bottles made into cheap plastic (not recycled)
◊ Quality degrades -> cannot continue
-> Higher quality product -> lower quality products
Innocence owned by coca cola
Greenwashing
portraying organisations, products, or practices as positive for environment, even though they’re not
- Environmental marketing claims that are not true
Includes environmental claims that are:
1. False - factually incorrect
2. Not supported by evidence
3. Vague
□ E.g. ‘‘big dreams for a healthier planer’’ (innocence) -> suggests positive environmental impact but doesn’t say what
4. Selective
□ E.g. claiming it refers to whole product?
5. Use misleading labels
□ E.g. Garnier stamp
○ Can be done by text, image, sounds, colours or context ○ Can be in violation of rules - Hard law - Soft law regimes
greenwashing examples
** Example: Innocence**
UK Advertising Standards Authority (ASA) (Soft law regime):
□ Found that innocence ad misleading because implies (through imagery and lyrics) that purchasing their products has positive environmental impact when that is not the case
Example: Shell Global Campaign:
NL truck: □ Shell truck going to gas station, not electric vehicle, full of gasoline, environment warning signs (fire, dying fish) □ Sign that says 'I am on my way CO2 neutrally, are you too?' (In Dutch), environmentally coded image (green forest) -> shames driver behind □
Canada Billboard:
□ ‘‘Yes, you can now drive carbon neutral, available on all our fuels ‘’ -> not referring to electric cars
□ Environmental imagery
NL website:
□ ‘‘Drive CO2 neutral, forest imagery
Claim (how it claims to work):
- Regular gasoline when burned creates emissions
- Claims companies plant trees to ‘remove carbon from atmosphere -> compensating
- Carbon compensation:
◊ ‘‘CO2 is harmless gas found in our atmosphere we need it to heat our earth’’
□ CO2 captured by forests still at risk to be released into atmosphere
□ Claims of Shell making false climate claims - went through (VU law students)
greenwashing and aJax dish soap
**Environmental organisation client wanted to challenge misleading plastic recyclability claims
Back of bottle has many environmental claims:**
□ Explicit textual claims: ‘’ bottle and cap recyclable, permanent recyclability, bottle of 100% recycled plastic, no microplastics, vegan, plant based, etc.’’
□ Implicit claims: hand holding planet, leaves, happy animals, green, etc.
3 claims (on website and bottle):
1. Bottle made of 100% recycled plastics
(Plastic recyclability claims)
2. Bottle 100% recyclable
(Plastic recyclability claims)
3. Environmentally friendly product
Claims complaint submitted to Dutch advertising authority:
3 arguments against the 3 claims
1. Bottle and cap recyclable (on website 100%) ◊ Large percentage of plastic used cannot currently be recycled - Brewer et al. 2019: only 26% of plastic waste from dutch consumers recycled - PET bottles such as Ajax Bottle don't recycle well (Brewer et al. 2021) - over 80% not recyclable ◊ Used plastic usually not recycled, but downcycled -> Claim found misleading
- Bottle made of 100% recycled plastic
◊ Research showed that its currently technically impossible to make plastic bottles for consumer products made entirely from plastic waste
-> Claim found misleading
3. Environmentally conscious product ◊ Unclear claim - Are they saying the soap is Environmentally conscious, or that the plastic, or what ◊ Claim accompanied by link to US website: only contains general claims abt company's sustainability policy ◊ No info abt product ''Ajax all-purpose Cleaner Lime'' nor any info supporting claim product is environmentally conscious
-> Claim found misleading
—> All 3 challenged claims found to be misleading
◊ Company agreed to take down product -> but still do use it
Appeal also won
Legal pathways to combat greenwashing in NL
(1+2) Hard law: EU/national law:
EU Unfair Commercial Practices Directive (UCPD) -> Dutch law (implementation)
1. Civil court (enforcement) 2. ACM (enforcement)
- Soft law:
Nederlanse Reclame Code (set of rules on what is prohibited)
Reclame Code Commissie (rules on it, ‘enforcement’)
□ (No enforcement mechanism)
media regulation
No legal risk involved - > faster
Unfair Commercial Practices Directive (UCPD) 2005/29/EC
Requires EU MS to implement prohibition of unfair commercial practices
Directives set out general regulatory objective on EU level - must be implemented by MS into national law
purpose and legal basis of UCPD
Article 1 UCPD:
‘‘The purpose of this Directive is to **contribute to the proper functioning of the internal market and achieve a high level of consumer protection **by approximating the laws, regulations and administrative provisions of the MS on unfair commercial practices harming consumers’ economic interests.’’
Legal basis of UCPD :
Article 114 TFEU
Harmonising national laws of MS ‘’ approximating the laws, regulations and administrative provisions of the MS’’ to extent that this is necessary for internal market to work '’contribute to the proper functioning of the internal market’’
definition of ‘‘unfair commercial practices’’ UCPD
Article 2(d) UCPD:
□ Business-to-consumer commercial practices (hereinafter also referred to as commercial practices) means any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected w the promotion, sale or supply of a product to consumers;
Commercial practice:
Way businesses are communicating towards consumers
Unfair commercial practice:
- Aggressive commercial practices (Article 8 and Article 9 UCPD)
◊ E.g. seller comes to your door, your not expecting it and you sing, or someone on the street pressures, or in a store you get impression you cant leave without signing contractor;
Misleading commercial practices (Article 6 and Article 7 UCPD)
misleading actions UCPD
Article 6: UPCD
□ A commercial practice shall be regarded as misleading
- if it contains false information and is therefore untruthful
- or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, […]:
(a) the existence or nature of the product;
(b) the main characteristics of the product,[…]
[…]
□ And in either case it causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise
-> Unfair Even if info factually correct info if it still deceives through images, presentation, etc.
Aspects to test (once implemented into national law):
- Is info false or otherwise deceiving
- Does info relate to nature or main characteristics of product
◊ Almost always the case in environmental marketing (e.g. shell is carbon neutral, innocence bottle is recyclable)- claims of product False/misleading info has potential to influence consumer
◊ Not very strict criteria - excludes obviously ridiculous statement that exaggerate
◊ Met if it can be assumed that consumers take it seriously
- claims of product False/misleading info has potential to influence consumer
misleading omissions UCPD
Article 7 UCPD
* □ A commercial practice shall be regarded as misleading
- If in its factual context, taking into account all of its features and circumstances and the limitations of the communication medium, it omits material info
- That the avg consumer needs […] to take an informed transactional decision
□ And thereby causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise*
Aspects to test:
- Is there info omitted that average consumer needs to make informed transactional decision
◊ E.g. Innocence somehow has dreams of ‘‘healthier planet’’ - missing is how do the drinks contribute to this dream- Potential to influence consumer choice
◊ Not very strict criteria
◊ Somehow intended to be taken seriously
E.g. ‘‘If you drink Innocence a 1000 flowers will bloom’’ -> clearly metaphor not intended to be taken serious
- Potential to influence consumer choice
substantiation of claims UCPD
Article 12 UCPD:
□* National courts + administrative authorities can:
(a) Require trader to furnish evidence as to the accuracy of factual claims in relation to commercial practice
(b) Consider factual claims as inaccurate if the evidence demanded in accordance w (a) is deemed insufficient by the court or administrative authority*
-> It is the advertiser who has to prove claims
* ( ‘’ Require trader to furnish evidence as to the accuracy of factual’’)*
-> Court can require evidence
Example of environmental marketing claims (often greenwashing) challenged through legal pathways
Eni
National advertising found to be misleading by national court under national law implementation of UCPD
Italian gas company Eni ad:
□ Clear environmental advertising suggestion made:
- Dominant green colour and blue
- Leaf shape
- Eni diesel + green
◊ + motor efficiency
◊ + attention for environment
Misleading commercial action analysis (Article 6):
1. False or deceiving info
◊ Not explicitly false environmental claim:
- False info involved: gasoline bad for environment, ad making it seem somehow environmentally friendly
◊ More deceiving:
- Product is being promoted, sold and exists, maybe some environmental benefit but leading consumer to believe we are somehow dealing w environmentally friendly product
2. Info refers to nature of main characteristic of product: Yes: refers to characteristics of the Eni diesel gasoline
- Influencing consumer:
Yes:
- clearly wants to influence consumer to pick,
- no indication that company is not taking it serious,
- very likely to influence at least some
- Advertising meant to influence
–> Yes Misleading commercial action
Misleading commercial omission analysis (Article 7):
- Is there info omitted that average consumer needs to make informed transactional decision
Omitted info on what ‘attention to the environment’ means
- Vague
- Consumers not told what this ‘attention to the environment’ entails
- Green colours suggesting environmentally friendly
- Influencing consumer:
Yes: same points
–> Yes Misleading commercial omission
Decision of Italian Competition Authority:
□ Imposed fine of €5 million on Eni
□ ‘‘for the dissemination of misleading advertising messages used in the promotional campaign regarding Eni Diesel+ fuel, both in relation to the claim of positive environmental impact connected w its use and to the alleged characteristics of this fuel in terms of savings in consumption and reductions in gas emissions.’’
Illustrates application of national law implementation of EU Directive (UCPD)
UCPD purpose and based on which EU legislative competence provision?
UCPD Article 1: The purpose of this Directive is to contribute to the proper functioning of the internal market and achieve a high level of consumer protection by approximating the laws, regulations and administrative provisions of the Member States on unfair commercial practices harming consumers’ economic interests.
-> Functioning of internal market through harmonisation of MS national laws on unfair commercial practices harming consumers’ economic interests
Based on EU legislative competence provision from the Art. 114 TFEU
-> Art. 114 TFEU allows EU to adopt measures for approximation (harmonization) of national laws that directly affect establishment or functioning of the internal market
Are Advertisements “commercial practices” covered by the UCPD?
Yes!
Art. 2(d):
B2B commercial practices’ (hereinafter also referred to as commercial practices) means any act, omission, course of conduct or representation, commercial communication **including advertising **and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers;
What are unfair commercial practices and specific examples of unfair commercial practices?
(Art 5.1, .2 and .4)
Unfair commercial practices are acts by businesses that distort consumer behaviour in ways that are contrary to professional diligence, and mislead or coerce consumers into making decisions they wouldn’t otherwise make
Examples are misleading acts such as false claims, hiding info fake endorsements (‘ e.g. recommended by drs) (detailed in Articles 6 and 7 ) , or aggressive acts such as pressuring to buy, harassing, or threatening
Article 5 :
* 1. Unfair commercial practices shall be prohibited.
2. A commercial practice shall be unfair if:
a) it is contrary to the requirements of professional diligence,
And
b) it materially distorts or is likely to materially distort the economic behaviour with regard to the product of the average consumer whom it reaches or to whom it is addressed, or of the average member of the group when a commercial practice is directed to a particular group of consumers.
4. In particular, commercial practices shall be unfair which:
a) are misleading as set out in Articles 6 and 7,
Or
b) are aggressive as set out in Articles 8 and 9*.
Do traders have to communicate EVERYTHING that can be of relevance to consumers?
No, traders don’t need to disclose every piece of information that might be relevant.
Yes, traders must disclose “material information”
□ that is, information the average consumer needs to make an informed choice
- especially in invitations to purchase (ads, websites, or offers that include price and encourage purchase)
Art 7(3):
Where the medium used to communicate the commercial practice imposes limitations of space or time, these limitations and any measures taken by the trader to make the information available to consumers by other means shall be taken into account in deciding whether information has been omitted.
If there is a legal challenge against misleading advertising, who carries the burden of proof? Does the plaintiff have to prove that the advertising claim is incorrect, or does the advertiser (as the defendant) have to prove that their marketing claim is true? (Article 12)
Under Art. 12 UCPD, BoP is on the trader (advertiser)—not the consumer or authority bringing the challenge.
□ So advertiser must prove that claim is true, the consumer doesn't need to prove it's false
Art. 12: Substantiation of claims:
* □ National courts + administrative authorities can:
(a) Require trader to furnish evidence as to the accuracy of factual claims in relation to commercial practice
(b) Consider factual claims as inaccurate if the evidence demanded in accordance w (a) is deemed insufficient by the court or administrative authority*
How do Dutch civil code Article 6:193c and Article 6:193d relate to the UCPD?
They are the transposition of the UCPD in NL national law implementing UPCD, This is important because Directives need to be transposed into national law so that they can be invoked
Article 6:193c implements Art. 6 UPCD
Article 6:193d implements Art. 7 UPCD
what is EU Commission’s “Guidance on the interpretation and application of Directive 2005/29/EC […] concerning unfair business-to-consumer commercial practices in the internal market”
non-binding guideline that helps in the interpretation of the UCPD. Ca 13 pages deal with the application of the UCPD to environmental marketing claims. (
What are environmental marketing claims? (EU Commission’s Guidance)
environmental claims encompass any message or representation, in any form, that states or implies a product or trader has a positive or no impact on the environment
includes terms like “eco-friendly,” “sustainable,” “green,” or “carbon neutral,” as well as symbols, imagery, or labels suggesting environmental benefits
Does the UCPD apply to environmental marketing claims? (EU Commission’s Guidance)
Yes, UCPD applies to environmental marketing claims
UCPD doesn’t contain specific provisions solely for environmental claims
□ provides legal framework to ensure such claims are not unfair to consumers
-> environmental claims must not be misleading/aggressive and should adhere to the principles of professional diligence
serves as general safeguard against unfair commercial practices incl. those related to environmental aspects
When do environmental marketing claims violate Articles 6 or 7 UCPD? (EU Commission’s Guidance)
- Provide false or deceptive information:
□ E.g. claiming product is “100% recyclable” when not - Omit essential information:
□ Such as failing to disclose that only a part of the product is recyclable - Use vague or unsubstantiated terms:
□ Like “eco-friendly” without clear evidence or explanation
-> These violations occur when such practices cause/likely to cause the avg consumer to make transactional decision they wouldn’t have made otherwise
Can images be misleading environmental claims? (Commission’s Guidance)
Yes, images can constitute misleading environmental claims under the UCPD
Visual elements, such as green colours, nature imagery, or symbols suggesting environmental benefits, can mislead consumers if they imply environmental advantages that don’t exist
E.g.: using a leaf symbol to suggest eco-friendliness without substantiation can be considered misleading
What are vague environmental claims? Are they allowed? (Commission’s Guidance)
Vague environmental claims are general statements like “green,” “eco-friendly,” or “sustainable” without specific details or evidence
□ Such claims are problematic because they can mislead consumers by suggesting environmental benefits that may not be substantiated
Under the UCPD vague claims not allowed unless they are clearly explained and backed by verifiable evidence
