Can I advertise my product as ‘green’? An analysis based on the electric car
It is always wise to exercise some caution in how to advertise a product on the market. Although often advertising in general terms has no legal consequences, the margin for this is quite small in practice. In all cases, misleading consumers must be avoided. Of course, such a clear deception as with the manipulative software for car tests in Volkswagen’s well-known ‘Dieselgate’ scandal is less likely to occur, but this is a case that indicates that misleading consumers can have enormous consequences for a company’s reputation. An earlier blog of ours dealt with greenwashing and misleading commercial practices. In this blog, we apply this to the advertising of a product as ‘green’, using the electric car as an example. First, the impact of the electric car on the environment is described. Subsequently, the relevant legislation will be discussed. Finally, a conclusion will be made in respect to whether advertising an electric car solely as ‘green’ is misleading.
The environmental impact of the electric car
The electric car is generally seen as a more sustainable alternative to the traditional (diesel or petrol) car, because it does not emit tailpipe gases. However, this does not mean electric cars are completely emission free. In fact, the production and recycling of electric cars has a much greater impact on the environment than that of traditional cars. Nevertheless, a study by Knobloch et al. from 2020 shows that in most countries the overall environmental impact of electric cars is smaller than that of traditional cars. However, this is not the case in countries that still rely heavily on coal-based energy, such as Poland and India. In view of the energy transition, electric cars will only become more sustainable in the future, as they will probably eventually run on 100% sustainably generated energy. In addition to the emissions of electric cars, it is also important to note that the components, and especially the battery, have a significant impact on the environment. Although this article mainly focuses on emissions, it is important to mention that in this respect many European regulations apply to reduce the impact on the environment. These include REACH, RoHS, the Battery Directive and the ELV Directive. These regulations will also be discussed on this site in the future.
Misleading “green” claims
According to the European Commission in their Guidance on the implementation of the Unfair Commercial Practices Directive, a ‘green claim’ is one that gives the impression that a product has a positive or zero impact on the environment or is less harmful to the environment than competing products. According to the Commission, such claims can lead to a misleading commercial practice when (i) they are not presented in a clear, specific, accurate and unambiguous way, or (ii) there is insufficient evidence to support them. In this context, what makes it difficult to assess the permissibility of claims containing the word ‘green’ is that there is no clear definition of ‘green’. The Commission therefore places this term in the category of ‘unclear and generic promises of environmental benefits’. Therefore, a misleading commercial practice is likely because there is a possibility that the average consumer, on the basis of such a ‘green claim’, will make a transaction that he would not have made otherwise. This was the case, for example, in a case before the French authority Jury de déontologie publicitaire (JDP), where it was ruled that the terms ‘clean and renewable’ were misleading. The deception lay in the fact that, on the basis of such a general claim, consumers may think that the product has no impact on the environment at all. Therefore, it is important to motivate sufficiently why it is a ‘green’ product and also to include the environmental impact during the entire life cycle of the product.
Based on the above, it can be concluded that advertising claims containing the word ‘green’ are so vague that they should be applied with caution. A consumer is easily misled on the basis of the word ‘green’. Because there is no clear definition of the word ‘green’, consumers may believe that the product has no impact on (or only benefits to) the environment. Although the impact of an electric car during its entire life cycle is generally smaller than that of the traditional car, it has a greater impact in the production and recycling phase. Therefore, it is wise not to advertise an electric car solely as ‘green’. It is important to clearly explain why it is a ‘green’ product, what life cycle is involved in the claim and to have sufficient proof of the claim. A clear, specific, accurate and unambiguous claim is required. A mere mention of the word ‘green’ is not sufficient as long as the overall environmental impact of the product is not zero or positive. This also applies to the electric car.
Do you want to know more about misleading business practices in the context of the environment? Then please contact Law & More. Our lawyers are specialised in the field of commercial law and the environment and will be pleased to help you with all your questions and any legal disputes.