by Anneleen Wydooghe and Wannes Gardin
With the increasing focus on sustainability, it is tempting to claim that a product or service has a positive impact on the environment or is less harmful than that of the competition. However, the danger of greenwashing is never far away.
Greenwashing is the commercial practice of misusing environmental claims for marketing purposes. Making misleading and/or false environmental claims about your products or services falls under the prohibition of misleading and unfair commercial practices (Art. VI.93-VI.100 WER.). In addition to these basic rules, there is also a large amount of specific legislation from the Belgian and European authorities that must be taken into account (e.g. minimum requirements/conditions for environmental claims and labelling in certain sectors).
The ban on greenwashing applies to all forms of commercial communication containing environmental claims. The term "environmental claim" is very broad, as the use of certain logos, colours, packaging, etc. can also be considered an environmental claim.
The consequences of greenwashing may be significant. The Economic Inspectorate has a hotline where anyone can report cases of greenwashing. Following such a report, an investigation may be launched. The Economic Inspectorate itself can also decide to carry out large-scale, general investigations, and investigations can be requested by a minister or the public prosecutor. In the event of an infringement, a company can be fined. This can be as high as €80,000 or 4% of the annual turnover. (Art. XV.70 and XV.83 WER.).
In addition, greenwashing can give rise to claims for contractual liability if you induce a contracting party to conclude a contract (or to conclude a contract on more favourable terms) on the basis of your environmental claims.
In order to draw a clear line, Europe is working on the Green Claims Directive, which sets out the correct communication and minimum substantiation required for environmental claims. The FPS Economy offers a practical guide for companies. It contains all the information mentioned above.
At the European level, there are two methods for estimating the environmental footprint of products and companies: Product Environmental Footprint (PEF) and Organisation Environmental Method (OEM). The European Commission therefore encourages environmental claims to be assessed against these environmental footprint methods.
Use words and terms that every customer can understand.
Avoid terms that are too general (e.g. "environmentally friendly") or too subjective (e.g. "the greenest").
Give customers easy access to full information about the environmental attributes of the product or service your company is promoting.
Use visual elements (logos, images, colours ...) that are unambiguous and cannot give customers the impression that a product or service is more environmentally friendly than it actually is.
Do not make exaggerated claims and provide only relevant information. For example, avoid claims that emphasise features that are required by regulation and are therefore the same for all products in the category.
If a study has been carried out, provide sufficient scientific evidence to support the environmental claim.
In our opinions, we rely on current legislation, interpretations and legal doctrine. This does not prevent the administration from disputing them or from changing existing interpretations.
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