Climate and Resilience Act: communicating and promoting sustainability

In addition to addressing consumer, commercial and sales practices (see our flash Climate and Resilience Law: consuming and selling sustainably), the Climate and Resilience Law n° 2021-1104 of August 22, 2021, whose objective is to accelerate the "greening" of companies' and consumers' behaviours, includes a set of provisions prohibiting and strictly supervising certain advertis­ing and promotional practices that are deemed to have a negative impact on climate.

Some of these provisions entered into force on 25 August 2021, but most will only be applicable af­ter the publication of a decree or at a later date. This date will be of importance because it will mark the introduction of new constraints and obliga­tions for companies.

The following is a summary of the main ones.

Prohibition of advertising for fossil fuels and the highest polluting vehi­cles (Art. 7 and 8 of the law)

As of 22 August 2022, Article 7 will prohibit advertising relating to the marketing or promotion of fossil energy, except for fuels composed of at least 50% renewable energy. A decree will specify the list of energy types concerned as well as the rules applicable to renewable energy types incorporated into fossil fuels (new Art. L. 229-61 of the Environmental Code).

Similarly, from 1 January 2028, advertising for the most polluting new pri­vate cars (vehicles emitting a certain level of carbon dioxide per km; Art. 73 1er bis of Law No. 2019-1428), for which the list will be determined by decree, will be prohibited (new Art. 229-62 of the Environmental Code).

In the event of a violation of these prohibitions, a fine of EUR 20,000 for natural per­sons and EUR 100,000 for legal persons may be imposed, and this amount may be increased to the amount of the expenses devoted to the illegal opera­tion. In the event of a repeat offence, the amounts may be doubled (new Art. 229-63 of the Environmental Code).

Article 8 also prohibits any advertising offering a discount or reduction that cancels out or reduces the effect of the penalty applicable to the most pollut­ing private cars, as provided for in Article 1012 of the General Tax Code (new Art. L.121-24 of the Consumer Code). No penalty appears to be specified in the event of non-compliance with this prohibition.

Sanctioning of advertising encouraging the scrapping of prod­ucts (art. 9 of the law)

Since 1 January 2021, Article L. 541-15-9 of the Environmental Code
requires that any advertising or commercial communication action aimed at pro­moting the scrapping of products must include information encouraging reuse or recycling and prohibits any advertising that encourages the degradation of products in normal working order and prevents their reuse or recy­cling.

From 1 January 2022, failure to comply with these provisions will be punished by an administrative fine of EUR 3,000 for a natural person and EUR 15,000 for a legal person. The decision may be published at the expense of the person sanctioned.

Prohibition of advertisements containing misleading claims re­garding environmental impact or claiming carbon neutrality (Arti­cles 10, 11 and 12 of the law)

In order to fight greenwashing practices more effectively, the definition of misleading commercial practices now expressly targets false or misleading claims, indications or presentations concerning the environmental impact of a good or service or the scope of the advertiser's commitments (Art. L. 121-2, §2°b and e amended Consumer Code).

The legislator has placed great importance on the pun­ishment of these practices. While the fine of EUR 300,000, incurred for all misleading commercial practices, may be increased to 10% of the average an­nual turnover and also to 50% of the advertising expenses incurred, the Climate and Resilience Act (Article 11) raises this rate to 80% of the advertising ex­penses when the advertising is based on misleading environmental claims (Arti­cle L. 132-2, §2, amended Consumer Code).

In addition, the Climate and Resilience Act (Art. 12) prohibits advertising claims that a good or service is carbon neutral. An exception to this prohibition exists, however, since carbon neutrality may be claimed by an advertiser who makes the following three elements readily available to the public (new Art. L. 229-68 Environmental Code):

• a greenhouse gas emissions balance sheet integrating the direct and indi­rect emissions of the product or service;
• the process by which the product or service's greenhouse gas emissions are first avoided, then reduced and finally offset;
• the methods for offsetting residual greenhouse gas emissions that comply with minimum standards defined by decree.

The procedures for implementing these provisions will be specified by decree.

Failure to comply with these provisions may be punished, according to terms also specified by decree, by an administrative fine of EUR 20,000 for a natural person and EUR 100,000 for a legal person, which may be increased to the full amount of the expenditure devoted to the illegal operation (new Art. L. 229-69 of the Environmental Code).

Prohibition of advertising in the air (Art. 20 of the law)

As of 1 October 2022, advertising disseminated by means of a banner towed by an aircraft will be prohibited, subject to an administrative fine of EUR 1,500 imposed by the Prefect and a criminal fine of EUR 7,500, increased to EUR 37,500 for legal entities (new Art. L. 581-15 §2 , Art. L. 581-26 §2 amended and Art. L. 581-34, I- 2° Environmental Code). Only aircraft are concerned, which excludes microlights and hot-air balloons from the prohibition.

However, this prohibition will not apply in the case of advertising relating to the activ­ity carried out by the owner or user of the aircraft, provided that the vehicle is not used or equipped for essentially advertising purposes (new Art. L. 581-15 §3 of the Environmental Code). The name of the airline or the manufacturer may continue to be mentioned.

Control of advertising and illuminated signs inside commercial premises (Art. 18)

In municipalities that have such regulations, the local advertising regulations may now regulate illuminated advertisements and signs located inside the win­dows or bays of a business premises (not used primarily as an advertising me­dium) and intended to be visible from a road open to public traffic. Prescriptions may now be provided for in terms of extinction times, surface area, energy consumption and prevention of light pollution (new Art. L. 581-14-4 §1 of the Environmental Code).

Failure to comply with these requirements will be punishable by an administra­tive fine of EUR 1,500imposed by the prefect and a criminal fine of EUR 7,500, increased to EUR 37,500 for legal entities (new Art. L. 581-14-4 §2 of the Environmental Code).

Advertisements and signs existing at the time of the publication of the local advertising regulation and not conform­ing to it may be maintained for a period of two years (Art. L. 581-­43 modified of the Environmental Code).

Experimentation of the OPT in the field of home distribution of printed advertising (Art. 21 of the law)

According to the AGEC law, since 1 January 2021, a fine of EUR 1,500 exists for natural persons and EUR 7,500 for legal persons for not respect­ing "STOP PUB" stickers (Article L541-15-15 of the Environmental Code). In addition, the Climate and Resilience law sets up, on an experimental basis for a period of three years, an Opt in system instead of the advertising Opt out. The terms of the Opt in system will be speci­fied by decree.

The experiment will be carried out in local authorities or groups of local authori­ties with a local household waste prevention programme. The list of these authorities and groups (15 at the most and whose total population must not exceed 10% of the French population) will be announced by decree, based on the applications received.

During the experiment, the distribution at home of unaddressed plastic, pa­per or cardboard advertising material will be prohibited unless it is expressly and visibly marked on the letterbox or mail receptacle. Press samples will not be subject to this prohibition, but local authorities concerned by the ex­periment may exclude certain sectors, such culture and the press.

Six months before its expiry, this experiment will result in an evaluation report, which will include a comparison of the environmental impact between adver­tising campaigns by print distribution and those carried out digitally.

By 1 June 2022, the Government must submit to Parliament a report assessing the impact of the penalty provided for in Article L. 541-15-15 of the Environmental Code on the distribution of unaddressed printed advertis­ing.

Establishment of codes of good conduct for environmental advertis­ing (Art. 14 of the law)

The Climate and Resilience Act instructs the “Conseil superieur de l'audiovisuel” (French Superior Audiovisual Council) to promote sectoral and cross-sectoral codes of good conduct on environmen­tal advertising ("climate contracts") aimed at significantly reducing commercial communications on audiovisual communication services and online platform services relating to goods and services that have a negative impact on the environment (amended Art. 14 of Act No. 86-1067 of Septem­ber 30, 1986).

Obligation to provide summary information on the environmen­tal impact of certain goods and services covered by an advertise­ment (art. 7 of the law)

When available, summary information on the environmental impact of goods and services, considered over their entire life cycle, must appear in a visible and easily understandable manner in advertisements (other than radio adver­tisements) for the following products (new art. L. 229-64 of the Environmental Code):

• goods and services subject to a mandatory environmental display by Article L. 541-9-11 of the Environmental Code (see our flash Climate and Resilience Law: consuming and selling sustainably);
• products covered by a mandatory energy label (mention of the product's energy efficiency class);
• vehicles with a mandatory label (mentioning the carbon dioxide emission class of the vehicle).

The conditions for the application of this text will be set by decree. This decree may specify, in the interests of transparency, that advertisements must include a clear and legible reference to a separate medium that is easily accessible to con­sumers, in order to make other compulsory information or details available.

Any failure to comply with this new obligation will be punished by a fine of EUR 20,000 for a natural person and EUR 100,000 for a legal person, which may be increased to the total amount of the expenditure incurred in the illegal trans­action. In the event of a repeat offence, the fines may be doubled (new Art. L. 229-65 of the Environmental Code).

In addition, importers, distributors or other persons placing the above-men­tioned goods on the market will have to report, in accordance with the procedures set out by decree, to a dedicated digital platform (to be created), when their annual advertising investments reach EUR 100,000. Failure to comply with this reporting obligation will be punished by a fine of EUR 30,000 (new Art. L. 229-67 of the Environmental Code).

Each year, the list of these companies will be published, indicating whether or not they subscribe to the sectoral and cross-sectoral codes of good conduct that will have been established (see Art. 14 above).

Our team of specialists in competition and consumer law is at your disposal for any further information.