Nowadays and since a few decades ago, many actors influential in international affairs, such as organizations and firms, have been paying more attention to their reputation in the eyes of their environmentally conscious clients or consumers. Ever since, the environmental protection issue has been more and more addressed, in United Nations resolutions or international conferences such as COP26 – the Glasgow Conference of 2021 regarding climate change, the international community and the ecologists have been turning and pointing fingers to the polluters. These polluters, usually incarnated in these well-known, notorious and influential organizations on the market, have been using greenwashing as a way to avoid being the scapegoat for all of the current environmental problems our world has to face and save their reputation. This article provided by Law Career Start aims to inform the reader on what greenwashing is and how you can spot this practice, as well as what is the legal standpoint in cases where firms practice greenwashing. Is there any international regulation regarding greenwashing?
1. WHAT IS GREENWASHING AND WHY IS IT PRACTICED?
Before we analyze any legal situation, we need to clarify what greenwashing is. We could define it as a communication strategy or a means of persuasion of the masses, usually manifested by advertising or publicities where the word “natural” is often employed (or the words bio, ecological) and the color green is omnipresent, in order to suggest to the public that the firm, company, organization or institution is engaged towards environmental protection, when in reality their supposedly eco-friendly action is limited or nonexistent. In other words, Nick Feinstein’s definition resumes perfectly what greenwashing means : “false or misleading environmental claims in advertising”.
To spot this practice, Breduillierad has developed few criteria that help it recognize fast : usually a company that wants to be perceived as an eco-friendly and eco-conscious actor (when in reality they still pollute more than they protect) will use in their commercials the color green, sometimes an ecological label (that can be invented sometimes) and the word sustainable, without giving information on their negative impact on the environment. Along these criteria, one could also use in the commercial, on the online site or even on the product itself of the company, a few images of nature, flowers, trees suggesting this close connection with nature to the viewer / buyer. To illustrate this point, the notorious beverage company Coca-Cola has been called-out for advertising its Dasani plantbottles as being more respectful to the environment, more “natural”, following Breduillierad’s criteria when in reality that type of bottle has been studied and recognized still as a non biodegradable bottle, creating high emissions of carbon dioxide.
Giving these circumstances, companies that usually pollute the environment due to their activities or their productions, tend to get unsure about their reputation, in the eyes of environmental NGOs, ecologists, environmentally conscious clients and turn to greenwashing in order to save their respectability and social approval, and intrinsically to avoid loss in terms of profit, consumers and sanctions. “By giving the brand an ethical and environmental dimension”, greenwashing is a cheap strategy to change people’s opinions, targeting first and foremost the clients of a firm. When the client is given the chance to evaluate what Aragon-Correa and Bowen call the “environmental performance of a company”, they could believe in the “transparency” the firm provides regarding their carbon footprint and also feel eco-friendly while consuming or buying from the producer.
2. WHAT IS THE INTERNATIONAL LEGAL SITUATION REGARDING GREENWASHING?
Now that we explained what we refer to when we talk about greenwashing, how to spot it and why it is a practice among polluting companies, we shall have a look at how various legal systems react to greenwashing and try to see if there is any international regulation concerning it.
In his study, Feinstein argued that “existing laws inadequately protect consumers and the environment from the harmful effects of greenwashing.” After understanding what greenwashing is, we can say that it is a type of communication and marketing strategy. Every national legal system normally has sources of consumer protection regarding advertising, especially misleading or false ones, such as the United States have the Federal Trade Commission Act and the Green Codes. The Australian legal system does not address greenwashing directly, it rather talks about “misleading conduct” in its Competition and Consumer Act from 2010.
However, compared to the USA’s acts and case law, there seems to be an important lack of regulation concerning greenwashing on European territory. The United Kingdom has no specific legislation targeting anti-greenwashing. Nevertheless, the European Union has since 2005 the Unfair Commercial Practices Directive, where articles 6 and 7 address the misleading and untruthful marketing strategies that corporations, companies and producers could put in practice. Although the EU 2005 Directive does not refer to greenwashing specifically, the French legal system adopted one of the world’s first sanctions in case of greenwashing in their consumer code and the article L. 541-9-1 in their environmental code forbidding companies to write environmental engagement allegations on the advertisements for products that pollute the environment in its integrity. Other member states of the European Union, such as Italy, also followed in France’s footsteps in taking greenwashing matters in their own hands. Moving on to France and Italy’s common neighbor, Switzerland, we realize that there is no specific law concerning greenwashing, therefore any false eco-friendly claims on a product or an advertisement will be covered most likely by the Unfair Competition Law (LCD). These various examples show nothing but the fact that greenwashing is still a matter of national jurisdictions and that there is still some effort that the international community should make regarding anti-greenwashing international regulation.
To conclude, greenwashing is a dangerous practice condemned by national legal systems, falling usually under categories of misleading actions, deceptive conducts or unfair competition. At the international level however, greenwashing is unfortunately still not directly addressed in environmental or commercial regulations. Therefore, we conclude that the international community as a whole needs to still work on how to approach the greenwashing problem from a legal angle. If you wish to check what companies and producers do not actually reveal the integrity of their environmental impact, EnviroMedia Social Marketing is one of the activists organizations that put in place the greenwashing index to give real examples of this means of persuasion and to disclose more information about who is not being faithful in this aspect.
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