“Environmental advertising” is a popular marketing tool nowadays and is frequently used for numerous products, especially in the food sector. It conveys an image of sustainability and suggests that the advertised product is particularly resource-efficient and reduces the personal ecological footprint. A conscious, environmentally friendly lifestyle is a priority for many consumers, which motivates companies to label their products as environmentally friendly or climate neutral. However, it is often difficult for consumers to verify the truth behind these claims.
Deutsche Umwelthilfe e.V. (DUH) repeatedly pursues cases of misleading environmental advertising in court in order to combat deception and ensure fair competition. One significant success was the case against HelloFresh, which described itself as a “climate-neutral” company. The Berlin Regional Court ruled that this form of environmental advertising was inadmissible (Berlin Regional Court, judgment of 19.09.2023 – 102 O 15/23). The Karlsruhe Regional Court also ordered the drugstore chain dm to refrain from using the term “environmentally or climate neutral” (Karlsruhe Regional Court, judgment of 26.07.2023 – 13 O 46/22).
Legal limits of environmental advertising
The discounter Netto also had to face up to this development when it advertised its coffee drink “Cafèt Latte Cappuccino” as “climate neutral” and justified this with emission credits from projects in Brazil and Uruguay. However, the Amberg Regional Court ruled that these offsetting measures were not sufficient to advertise the product as climate neutral. The advertising was classified as misleading as the sustainability of the product could not be sufficiently proven and therefore threatened to mislead consumers (Amberg Regional Court, judgment of 29.01.2024 – 41 HK O 0279/23).
The court referred to an earlier decision by the Federal Court of Justice on environmental advertising, which applies high assessment standards to statements on environmental benefits due to the often emotional reactions of consumers. Accordingly, environmental advertising claims must be transparent and scientifically comprehensible in order to avoid misleading consumers.
Special challenges in the case law on environmental advertising
In case law, environmental advertising is assessed in accordance with the prohibition of misleading advertising pursuant to Section 5 UWG, the prohibition of misleading advertising by omission pursuant to Section 5a UWG, the general clause of Section 3 UWG and the always prohibited commercial acts of the “black list”. The strict standards are justified by the often strong emotional appeal to consumers and the general need to make responsible consumer decisions.
As consumer understanding is constantly evolving, it is becoming increasingly difficult to draw clear boundaries for environmental advertising. Case law agrees that consumers may accept compensation certificates in certain cases if they are communicated transparently. However, it is often unclear what further information is necessary to avoid misleading consumers. The decisive factor is the overall impression conveyed by an environmental claim and how an average consumer is likely to interpret it.
Criticism of the current legal situation regarding environmental advertising
As terms such as “climate neutral” or “environmentally friendly” do not have a standard definition and are often used synonymously, legal uncertainties arise. Various courts sometimes understand “climate neutrality” to mean a complete absence of emissions, while others allow compensation. These legal uncertainties and the lack of clear guidelines mean that companies often do not know how to design environmentally related advertising in a legally compliant manner.
This makes it more difficult for companies to fulfill their responsibilities and increases the risk of legal consequences such as injunctive relief or claims for damages. Companies currently have no clear guidelines that could put them on the safe side when it comes to environmental advertising.
Future prospects: Stricter EU requirements for environmental advertising
However, improvements appear to be on the horizon: as part of the “Green Deal”, the EU Commission is planning to tighten regulations on environmental advertising and prevent greenwashing. The planned guidelines of the Green Claims Directive and the Empowerment Directive are intended to provide more clarity. In future, companies will have to provide clear evidence for environmental claims such as “climate neutral” or “environmentally friendly” and have their claims independently certified.
It remains to be seen whether the EU requirements will have the desired effect and create uniform regulations for environmental advertising.
Environmental advertising continues to be a powerful marketing tool for companies, but it is subject to a strict legal framework. The uncertainties for companies are great, as there is a lack of uniform definitions and guidelines, which often leads to legal disputes. The term “climate neutrality” in particular is a prime example of the problem, as it is interpreted differently by consumers. The planned EU directives promise to remedy this by creating a clear basis for environmental promises. Companies could then design their advertising on the basis of defined standards and thus not only meet legal requirements, but also strengthen consumer confidence in the long term.
