Consumer Ombudsman continues focus on greenwashing

In the relevant cases (see here, here and here (in Danish)) companies have, for example, marketed their products as sustainable without having sufficient information to substantiate the claim (so-called greenwashing). Several companies stated that their sustainability claims were based on the fact that their products consisted of 100% organic cotton, 50% recycled material, or that that the products were certified. However, the Ombudsman did not believe that this was sufficient to justify marketing the products as sustainable.

In the press release of 16 December 2022 (in Danish) the Ombudsman stated, referring to the five most recent cases, that a company marketing its product as sustainable must also be able to provide documentation that, for example, the product's production did not have a detrimental impact on the environment or deplete the planet's resources to the detriment of future generations. In the press release, the Ombudsman further states that companies may promote specific environmental benefits of their products. However, when companies market their products as sustainable without being able to substantiate the claim, it constitutes misleading marketing. 

Therefore, the Ombudsman repeated  in the press release the general recommendation that companies should refrain from marketing their products as sustainable, as it indicates, among other things, that the product's production had no detrimental impact on the environment or did no deplete the planet's resources to the detriment of future generations.

The recommendation is in line with the Consumer Ombudsman's Vejledning om brug af miljømæssige og etiske påstande m.v (Guidance on the Use of Environmental and Ethical Claims, etc) (in Danish)  (the "guidance"), as well as the related Kvikguide til virksomheder om miljømarkedsføring (Quick Guide for Companies on Marketing) (in Danish) (the "quick guide"), which defines "sustainable development" as development that meets the requirements of the present generations without endangering the ability of future generations to meet their own requirements. 

It appears from the quick guide, in continuation of the definition, that it is therefore difficult to refer to products, etc., as sustainable without misleading the consumer. However, a company may market its products, etc., by claiming that it aims at sustainability, or similar claims.

The Ombudsman's assessment of marketing practice in these cases is consistent with the existing guidelines in the area.

In the three most recently decided cases (see the Consumer Ombudsman's press release today) (in  Danish), the companies have, for example, marketed diesel containing 25% biofuel by use of excessive environmental claims, emphasised environmental statements about so-called "mild hybrid cars", and promoted hybrid cars as eco-friendly. In all three cases, the Consumer Ombudsman found that the three companies had used language that made their products appear to be better for the environment or have less environmental impact than they actually do. At the same time, the Consumer Ombudsman emphasised that the companies could have legally marketed their products using concrete and precise claims about the products' reduced environmental impact.

The numerous decided cases highlight the Consumer Ombudsman's increased focus on companies' use of environmental and sustainability claims. The Ombudsman recently received additional resources to review such cases.

It is also worth noting that, in all the cases reviewed, the Consumer Ombudsman did not report the companies to the police but instead urged the companies to observe the relevant regulations. It cannot be stated with certainty whether this is because marketing in these specific cases was conducted several years ago at a time when the area was broadly characterised by more uncertainty.

In a meeting on 30 November 2022, the Consumer Ombudsman stated that more reports are expected to be filed with the police in 2023 for violation of the prohibition against greenwashing. In keeping with this, the Consumer Ombudsman stated in the press release today  (in Danish) that companies should expect to be reported to the police if the Consumer Ombudsman should find that they are using misleading statements.

The Consumer Ombudsman is expected to send a new guidance for environmental and sustainability claims out for consultation soon, which will hopefully provide greater clarity in the area. 

Do you want to know more?

If you want to know more about the rules governing greenwashing, please contact Plesner's Marketing Law and Consumer Law team.