Lawyer Monthly - August 2021 Edition

44 WWW.LAWYER-MONTHLY.COM | AUG 2021 WILL COMPANIES BE WASHED AWAY BY GREENWASHING CLAIMS? As such, on 28 January 2021, the European Commission published the result of its "Screening of websites for ‘greenwashing'". This screening, or so-called "sweep", was conducted on the grounds that "national consumer protection authorities had reason to believe that in 42% of cases the claims were exaggerated, false or deceptive". The sweep of 344 claims found that: • "In more than half of the cases, the trader did not provide sufficient information for consumers to judge the claim's accuracy. • “In 37% of cases, the claim included vague and general statements such as “conscious”,“eco-friendly”,[and]“sustainable which aimed to convey the unsubstantiated impression to consumers that a product had no negative impact on the environment. • “Moreover, in 59% of cases the trader had not provided easily accessible evidence to support its claim". What is greenwashing? On its website, the European Commission states that greenwashing refers to "companies giving a false impression of their environmental impact or benefits". In 2012, the French Agency for Ecological Transition published a specific anti- greenwashing guide. In this guide, greenwashing is defined as: • "the use of the ecological argument when the benefit of the product or service to the environment is minimal, even non-existent”; • “the use of the sustainable development argument while the approach initiated by the company is either almost non-existent, or very partial, not very solid, little deployed to employees”; • “in short, a message that could mislead the consumer about the real ecological quality of the product or about the reality of the fair trade approach". The report already highlighted the fact that the three main greenwashing mistakes made by companies are to make excessive promises, to lack sufficient scientific data to back up claims and to use confusing visuals which make consumers believe that the product has a positive impact on the environment, even when it does not. More recently, on 29 April 2020, the French professional regulatory authority for advertising (Autorité de Régulation Professionnelle de la Publicité – ARPP) published an update on its recommendations around fair trade, in force since 1 August Eco-friendly, sustainable, biodegradable, carbon-free, better for the planet, fair trade: these are claims that are multiplying in the marketing messaging of companies from all industries. While first being criticised for allegedly not having placed the protection of the environment at the heart of their strategic development decisions, companies are now accused of "greenwashing" consumers. Will Companies Be Washed Away by Greenwashing Claims? Sylvie Gallage-Alwis, Partner Signature Litigation 49/51 Avenue George V, 75008 Paris Tel: +33 (0)1 70 75 58 00 sylvie.gallage-alwis@signaturelitigation.com Sylvie Gallage-Alwis Sylvie Gallage-Alwis became one of the founding partners of Signature Litigation’s Paris office after spending 10 years practicing at a major international law firm. She leads SL’s product liability practice and represents a variety of globally recognized manufacturers across a broad range of industries. Signature Litigation Signature Litigation is an international law firm founded in 2012. Its senior lawyers bring years worth of experience to tackle multijurisdictional transactions and disputes, specialising in high value commercial litigation and arbitration.