Ruling in Danish Crown case – and the latest news on green marketing

The Danish Western High Court's ruling on Danish Crown's "climate-controlled pig" campaign

In 2021, the consumer organisations Danish Vegetarian Association and the Climate Movement in Denmark instituted legal proceedings, alleging that Danish Crown A/S had acted contrary to the prohibition against misleading consumers, see section 5 of the Danish Marketing Practices Act, by using the statement "Climate-controlled pig is more climate friendly than you think" and the designation "Climate-controlled pig":  Read the High Court's press release here (in Danish) 

Based on an overall assessment, the High Court found that the statement "Danish pig is more climate friendly than you think" was relative and could not be considered misleading under the Danish Marketing Practices Act, as the average consumer would not interpret the statement to mean that Danish pork in general is climate friendly. Consumer surveys produced during the case indicated that the average consumer was aware that Danish pork production has a climate-impact. Therefore, the use of the word "climate-friendly" in the statement could not, in itself, be regarded as an environmental claim requiring Danish Crown A/S to substantiate the effect of Danish pork on the climate. Accordingly, the High Court found that the statement, given its relative nature, was sufficiently substantiated by the available surveys, and could not be deemed to be misleading. 

With regard to the designation "Climate-controlled pig", the High Court found that, based on an overall assessment, the use of a visible sticker on Danish Crown A/S's pork products gave consumers the impression of a labelling scheme which was subject to a certain level of environmental control, comparable to authorised environmental labels. At the time of the marketing, the necessary documentation in the form of such qualitative environmental control was not available. As a result, the designation could not be used as an isolated, general statement about environmental facts. Based on the available consumer surveys, the High Court determined that the use of the designation was likely to significantly impair the average consumer's ability to make an informed decision. Therefore, the designation "Climate-controlled pig" was found to be misleading, in violation of section 5 of the Danish Marketing Practices Act.

The High Court found that the plaintiffs' third claim, seeking an injunction against the future use of the designation "Climate-controlled pig", was too broadly worded, and it was therefore not upheld.

The ruling highlights the importance for companies to exercise caution when using environmental and climate-related claims, including their own labelling schemes, in marketing, particularly if sufficient documentation is not definitely available.

Due to the general public importance of the case, it was heard by the High Court as the court of first instance, allowing it to be appealed directly to the Supreme Court.

The number of complaints and cases is steadily increasing

Since the autumn of 2022, the number of complaints and active cases with the Danish Consumer Ombudsman regarding environmental marketing has been steadily increasing. In 2023 alone, the Consumer Ombudsman received 146 complaints about companies' use of statements about the environmental and sustainability claims in their marketing. Of these complaints, 54 resulted in injunctions or guidance to the companies, while four cases lead to police reports.

Already in December 2022, the Danish Consumer Ombudsman announced that companies could expect to be reported to the policy for violating the prohibition against greenwashing in the future. The four police reports filed in 2023 followed this announcement, and more reports of similar violations are expected to continue in 2024.

The Consumer Ombudsman's latest practice in the area

Most recently, the Consumer Ombudsman reported Copenhagen Cartel ApS to the police in January 2024 for a series of sustainability claims, which were deemed likely to mislead consumers into believing that its products consist solely or primarily of recycled plastic from the ocean. Click here to read more about the case (in Danish).

Shortly before this, in December 2023, Mercedes-Benz Danmark A/S was reported to the police for marketing itself as "certified environmentally friendly". The Consumer Ombudsman found this claim likely to mislead consumers into believing that Mercedes-Benz' cars have a lower environmental impact and that the company's efforts to minimise their environmental impact are significantly better than those of competing car manufacturers. Click here to read more about the case (in Danish).

In November, a police reports filed by the Consumer Ombudsman resulted in a company being fined under the new fine model. The company had been reported for misleading marketing of wood-burning stoves, falsely claiming that they were marked with the Nordic Eco-label. The company accepted a fine of DKK 125,000. Click here to read more about the case (in Danish).

In 2023, the Consumer Ombudsman also strongly emphasised the prohibition against misleading practices in the use of various green claims, including statements regarding products' natural ingredients, environmental friendliness, and CO2 neutrality. Click here, here and here to read more about the cases (in Danish).

Regarding the documentation requirement, the Consumer Ombudsman emphasised in January 2024 that merely making a certain climate impact probable is insufficient to comply with the Danish Marketing Practices Act's documentation standards. Specifically, the Consumer Ombudsman stated that in the case of forest conservation projects, using a statement such as "CO2 compensation" is not enough to render it probable that deforestation would occur in the relevant woodland without project support. Such a statement requires documentation proving that future deforestation of the woodland would indeed occur if the areas were not part of the forest conservation projects. Accordingly, in the Consumer Ombudsman's opinion, these marketing activities are likely to mislead the consumers about the actual climate effect related to the CO2 compensation for their fuel consumption. Click here to read more about the case (in Danish).

Update of the Consumer Ombudsman's quick guide and status on EU's directive on green claims

The Consumer Ombudsman is currently working on an update of their "Quick guide for companies on marketing", first published in December 2021.

The revision is expected to primarily include updates reflecting the latest practice and linguistic refinements. Notably, the revised guide will introduce illustrative examples of both legal and illegal environmental and sustainability claims, aiming to make the guidelines more practical and accessible for companies.

Simultaneously, advances in EU's review of the coming directive on green claims are expected (also read here). The European Commission's proposal was submitted in March 2023 and is expected to be reviewed by the European Parliament at a plenary session in March 2024.

Do you want to know more?

If you would like to know more about the rules on environmental marketing, please contact Plesner's Marketing and Consumer Law team