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Greenwashing – 2020 website sweep results make for uncomfortable reading

Today, it feels like there is an expectation that the new consumer products we buy are cleaner than Anthony Kiedis fresh out of rehab and have received Greta Thunberg’s personal seal of approval.  Even whilst working from home, I’m surrounded by products that are screaming at me with their environmental credentials.  A quick scan around my desk: my computer screen has a sticker gleefully reporting that it’s energy rating is A+, whilst my notepad just won’t let me forget that it’s pages are sourced from sustainable forests.

It seems part and parcel of product launch presentations that there will be a meaty segment devoted to an explanation of the product’s various environmental or eco-friendly credentials.  And with good reason, the amount regulation in certain product industries is vast and laudable from an environmental standpoint.  So, naturally, we probably don’t spend too long thinking about these things.  Not only do I expect the products I buy to live up to the hype that their branding constantly puts in my face, but I also expect that their claims have been proven and that someone, somewhere, has verified them.

And that is true!

As a competition lawyer, I was heartened to see an update published by the UK’s Competition and Markets Authority (CMA) reporting on its work as part of the International Consumer Protection Enforcement Network (ICPEN).  ICPEN hosts an annual sweep of websites, which gives consumer authorities across the world the opportunity to target fraudulent, deceptive or unfair conduct online.  The CMA and the Netherlands’ Authority for Consumer Protection (ACM) led the latest global sweep which focussed on misleading environmental claims.  Given my high bar set above, I was less heartened to see that the results found that 40% of firms’ green claims could be misleading.  That’s quite a staggering number – and now I’m concerned that I’ll never be able to look at my keep cup in the same way again.

But what do we mean by misleading? The review found that tactics deployed by firms included:

  • Vague claims and unclear language including terms such as ‘eco’ or ‘sustainable’ or reference to ‘natural products’ without adequate explanation or evidence of the claims.
  • Own brand eco logos and labels not associated with an accredited organisation.
  • Hiding or omitting certain information, such as a product’s pollution levels, to appear more eco-friendly.

The European Commission also conducts regular sweeps with national authorities on a range of consumer protection issues, including environmental/sustainability claims; and, again, the reading for 2020 is not good.  The Commission reported as part of the ICPEN sweeps and further added that in more than half of the 344 “seemingly dubious claims” that were analysed, over half did not provide sufficient information to allow consumers to judge the claim’s accuracy and 42% of cases were concluded to be false or deceptive.

Worst case scenario: deliberate greenwashing is rife; least-worst case scenario: the claims are true but firms aren’t doing enough to back them up to consumers.  But do we pay attention to these claims or omissions? Do we care about the level of greenwashing that is clearly happening?  Clearly there are many standards and standard setting bodies.  That A+ rating on my monitor screen, on a scale which includes a seemingly implausible A+++, is a verified standard under EU Regulation 2010/1062 on the energy labelling of televisions (I know right, who knew…).  But in thinking about the claims that are being made on the products that I buy, I’ve started noticing the amount of “own brand” credential reporting.  I’m now becoming highly suspicious that my butternut squash soup does not, in fact, contain the finest locally-sourced organic vegetables to keep carbon emissions down.

So in the year that the UK is hosting COP26, is anything being done to tackle the issues?

The CMA launched its own investigation in November 2020 in response to concerns that the surge in demand for green products and services might incentivise businesses to make misleading, vague or false claims about the environmental impact of the things they sell.  The CMA invited feedback from both consumers and businesses, and will publish consumer protection guidance later this year.  The UK isn’t alone in this space either: the EU’s European Green Deal and New Consumer Agenda initiatives contain proposals to ensure that firms substantiate their environmental claims against standardised methodologies; and the Commission hosted a workshop around the same time last year discussing the various issues and how authorities at all levels can better tackle them.

There clearly is a problem to be solved: the CMA’s UK investigation and the guidance published to firms will make for very interesting reading.  It also remains to be seen to what extent UK reporting methodologies will become aligned with those of the EU and others around the world.  The number of differing reporting standards is sure to be a problem in itself.  But for now at least it’s promising that some action is being taken – whether it’s a computer monitor or a notepad, in the age where we seem to be demanding accountability at every turn, it’s important that the powerful and potentially consumer demand shifting claims being made are proven to hold their weight.

Now for some low-carbon soup… I hope.

 

Written by James Harrison, Antitrust & Competition associate at Mayer Brown for NextGen