On 23 March 2023, the European Commission adopted the proposal for Green Claims Directive, to ensure that information on the environmental sustainability of products and services is based on objective and consistent data, as opposed to greenwashing (1,2)
However, the rules proposed in Brussels are weak and fragmented, unsuitable for achieving the valid objectives proposed. Even worse, these rules allow you to validate the private certification schemes on which the greenwashing thrives.
1) Environmental claims, Premise
The proposal reform (2022) of the directive on unfair commercial practices (Dir. 2005/29/EC) – aimed at protecting consumers in the era of the 'green transition' (at least in theory) – introduced the notion of claim environment in the following terms.
'Environmental claims means
- any message or representation, which is not mandatory under Union law or national law, including text, pictorial, graphic or symbolic representation, in any form, including labels, brand names, company names or product names, 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' (3)
2) greenwashing. European Commission studies
The findings of the European Commission (2020) on environmental claims e greenwashing they showed:
- unreliability. 53,3% of claim examined reported vague, misleading or unfounded news,
- 40% of the claims lacked proof.
The authorities of consumer protection cooperation in the Member States, in 2018, had found (out of 344 claim in 28 countries, which the Commission defines 'carpet investigation', in the introduction to the proposal in question):
- in 57,5% of cases the distributor did not provide sufficient elements to assess the validity of the declaration,
- in many cases, the information was so vague that it was not possible to understand whether it referred to the product or only to some of its components (50%), to the company or only to some products (36%), and to which phase of the cycle product life (75%). (4)
3) greenwashing e climate seals. Civil society relations
Foodwatchin its report on greenwashing in the November 2022 food sector, demonstrated that:
- no supplier of climate seals (private brands of hypothetical certification of 'climate neutrality') requires the food industries to adopt specific measures to reduce CO2,
- the providers of these services, such as Climate Partners (D) and Myclimate (CH) earn millions of euros just by brokering 'questionable' CO2 credits, even in favor of industries and italian retailer not eco-friendly at all. (5)
'The business with climate advertising is modern indulgences trade, which can do more harm than good to the climate. Instead of spending money on misleading climate seals, manufacturers should rather invest in effective climate protection measures along their own supply chain' (Rauna Bindewald, Foodwatch).
4) Ecological food and fabrics? Only if certified organic
Organic farming it is the only one to guarantee respect for biodiversity and ecosystems, soils and waters. Based on rules consolidated in European law for over 30 years (EEC reg. 2092/91, now EU reg. 2018/848) which finally find recognition.
'The terms 'bio' and 'eco' and their derivatives, alone or in combination, may be used' – for foods and their ingredients, feed materials and other products included in the scope of reg. EU 2018/848, only on certified organic products (proposal Green Claims Directive, recital 9).
The cotton cotton is taken as an example, as a product derived from agriculture which today can be certified organic. Although the most widespread deceptions today concern foods from 'integrated agriculture', as well as those mentioned by Foodwatch. (6)
5) The puzzle of EU and national rules
The Commission European Union once again proposes a directive – a very weak instrument, compared to the regulation (7) – which intervenes to amend another directive (2005/29/EC). Which in turn is the subject of a previous amendment proposal, precisely on the subject greenwashing (see above, par. 1).
Il puzzle of rules becomes more complicated with existing and evolving regulations – often based on regulations, i.e. truly identical rules at EU level – which already specifically govern a series of environmental claims. Biological, eco label, ecodesign, Circular Economy Package, certifications for ESG use and sustainable investments, etc. (8)
5.1) Asymmetrical protection of consumers and the market
The asymmetry of consumer protection with respect to the greenwashing is ensured by giving Member States the power to decide if and when i claim environmental are clear to consumers, consistent with 'scientific evidence' (whose fickleness in the service of the marketing is well known, v. note 9) and distinctive with respect to legal obligations (Article 3. Substantiation of explicit environmental claims).
Each member state will thus be able to 'tailor' national interests environmental claims to be admitted on the products manufactured there. And if Germany will allow i green claims on goods produced with energy from coal-fired power stations, the other Member States will have to accept the greenwashing (perhaps 'compensated' by carbon credits Peruvians) under the principle of free movement.
6) Green Claims Directive, the ABC
I green claims it is voluntary commercial information on the environmental performance of operators and/or their products and services. There Green Claims Directive, in the Brussels proposal, aims to apply the general principles of loyalty and transparency of commercial practices to this area.
I claim comparatives – as is obvious, also in the case of claim nutritional – must be substantiated and transparent in defining the terms of comparison. The others claim must be clear and specify the stage of supply chain to which they refer. The information must include at least:
- environmental aspects, environmental impacts or environmental performance,
- relevant EU or international standards (e.g. ISO), if applicable,
- studies used to evaluate, measure and monitor the environmental impacts, aspects or performances targeted by the claim, 'unless the information is a trade secret',
- 'brief explanation of how the improvements were achieved'
- 'certificate of conformity' and contact details of the verifier who drafted it,
- GHGs (greenhouse gases). THE claim relating to CO2 and greenhouse gases must specify whether they are offsets (carbon credits) or emission reductions or removals,
- a summary of the evaluation of the above elements, clear and understandable for consumers (Article 5. Communication of explicit environmental claims).
7) Environmental labels
Member States, in the Brussels plan, should evaluate the compliance of the environmental certification and labeling schemes with the standards to be introduced with the Green Claims Directive. And chaos is assured, as can be seen from the simple analysis of the six certifications that only in France today touch on the topic 'agroecology'. (10)
Scores and evaluations about products and operators, on the other hand, are reserved for the sole 'environmental labels awarded under environmental labeling schemes established by EU law' , which must be based 'on an aggregate indicator of the environmental impacts of a product or trader' (Article 7, environmental labels).
It is foreshadowed therefore the multiplication of 'flags' di 'environmental sustainability', in the style of environmental seals which feed the carbon credit market (see paragraph 3 above). Waiting – and in antithesis – for one standard European, all the better if international, which should instead consider the overall impact of the supply chains upstream of the products (11,12).
8) Environmental labeling schemes
'Labeling systems environmental certification attest that a product, process or business operator complies with the requirements for an environmental label'. And they must meet the following requirements:
- requirements processed by 'experts able to ensure their scientific soundness' and 'subjected to the consultation of a diverse group of stakeholders who have examined them and ensured their relevance from the point of view of society',
- information 'transparent, freely accessible, easy to understand and sufficiently detailed' on ownership and decision-making bodies of the environmental certification and labeling system, objectives, requirements and control procedures, (13)
- membership conditions proportionate to the size and turnover of the companies, so as not to exclude small and medium-sized enterprises,
- existence of a procedure for the resolution of complaints and disputes, which provides for the withdrawal and suspension of the environmental label 'in case of persistent and flagrant non-compliance with system requirements'. All tailored to greenwashing, as the story of unsustainable RSPO certified palm oil teaches. (9)
9) Provisional conclusions
A pebble in the pond of green paint will not solve the problem in any way greenwashing. The use of a directive will amplify the unfair competition of operators based in the more lenient countries, as already happens with regulatory asymmetries in labor law. (14)
The strategies Green Deal, Farm to Fork e Biodiversity 2030 they cannot find any concrete implementation in such a weak proposal. THE Green Claims they are only the symptom, and the lever of marketing, of a phenomenon to be tackled with identical rules in the entire EU market.
#SDG12. Responsible consumption and production
Dario Dongo
Footnotes
(1) European Commission. Green claims. New criteria to stop companies from making misleading claims about environmental merits of their products and services https://environment.ec.europa.eu/topics/circular-economy/green-claims_en
(2) European Commission, DG ENV. Proposal for a Directive on substantiation and communication of explicit environmental claims (Green Claims Directive). https://environment.ec.europa.eu/system/files/2023-03/Proposal%20for%20a%20Directive%20on%20Green%20Claims.pdf 22.3.22. COM(2023) 166 final
(3) European Commission. Proposal for a Directive amending Directives 2005 / 29 / EC et 2011/83 / EU as regards empowering consumers for the green transition through better protection against unfair practices and better information. COM(2022) 143 final https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52022PC0143&from=EN. See article 1
(4) European Commission (2020). Environmental claims in the EU: Inventory and reliability assessment Final report https://green-business.ec.europa.eu/environmental-footprint-methods_en
(5) Foodwatch (2022). Der grosse climate-fake report https://www.foodwatch.org/fileadmin/-DE/Themen/Klimaluegen/Report_Klima_Claims/Klima_Report_2022.pdf
(6) Donato Ferrucci, Dario Dongo. Integrated agriculture and use of pesticides, the data do not add up. GIFT (Great Italian Food Trade). 28.1.19
(7) The directive postulates transposition by the 27 EU Member States through specific national legislative acts which often diverge, even substantially, from the principles established by the European legislator. The example is cited Single Use Plastics Directive (SUP), which in Italy was disapplied with an unjustified derogation in favor of national bioplastic packaging. See paragraph 1.3 of the previous one article
(8) Green Claims Directive draft proposal, article 1
(9) Dario Dongo. Unsustainable palm oil, the 101 charge. GIFT (Great Italian Food Trade). 3.12.22
(10) Martha Strinati. Agroecology, 6 systems compared. The benefits of organic for farmers. Analyses. GIFT (Great Italian Food Trade). 30.8.20
(11) Martha Strinati. Environmental labeling of food, call for a reliable scheme. GIFT (Great Italian Food Trade). 8.3.22
(12) Martha Strinati. Organic vs Eco-score. IFOAM turns to the Court of Paris. GIFT (Great Italian Food Trade). 25.1.23
(13) Third party certification must be performed by accredited bodies, according to Reg. (EC) No 765/2008 (Green Claims Directive draft proposal, article 11)
(14) Marta Strinati, Dario Dongo. Slaughterhouses and meat industries. Behind the Covid-19 infections, the German gangster. GIFT (Great Italian Food Trade). 7.7.20
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
