France - Sustainability claims and greenwashing

• Sustainability claims are regulated by multiple laws and guidelines to support the fight against greenwashing
• Introduction of stricter rules regarding green claims and environmental marking
• Stricter rules emerge regarding advertising and commercial practices which undermine sustainability goals

What are the top 3 developments in your territory concerning green claims and the associated risk of greenwashing? 

Green claims and greenwashing issues are a very hot topic in France. Ecological aspects are now one of the main focus areas in the legislative framework, which is constantly expanding and evolving in France to better regulate these issues.  

We have identified the top 3 areas of development on this topic. 

1. Sustainability claims are regulated by multiple laws and guidelines to support the fight against greenwashing 

At present, two major laws regulate sustainability claims and greenwashing in the French market.

1.1 The law dated 10 February 2020 against waste and on circular economy (the “Circular Economy Law”) has set multiple objectives, such as:  

1. the achievement of zero disposable plastic by 2040, and 
2. encouraging more environmentally friendly products with a “bonus-malus” system. 

The objectives of this law are ambitious: to encourage a "circular" economic model based on eco-design of products, responsible consumption, extension of product life-span, and greater recycling of products and waste. 

This ambition inevitably entails a significant number of new constraints for companies, which are accompanied by various sanctions, being mainly administrative fines. 

Therefore, this law introduces several obligations in order to strengthen the environmental information available to consumers and to better regulate the use of certain green claims. 

1.2 The law dated 22 August 2021 on climate and resilience (the “Climate and Resilience Law”) introduced numerous provisions which aim to combat greenwashing more effectively and to frame the use of sustainability claims with clearer regulation. 

The aim of the Climate and Resilience Law is to promote a good understanding of environmental issues by the general public, while accelerating the green transition of business and consumer behaviour. As a result, product promotion will be more strictly regulated and the conditions for use of environmental labels will be clarified. In addition, this new law continues the work undertaken in the Circular Economy Law by contributing to the reduction of packaging and promoting the repairability of products. 

Greenwashing in France is also impacted by several ‘soft law’ sources, including: 

• Publication by the French economic administration of guidance on environmental claims, which gives advertisers a useful reference source by providing a framework for claims which are banned outright, or whose use is strictly regulated. An updated version of this guide is anticipated and is currently pending. 
• Publication by the ADEME (the French Agency for Ecological Transition) of a guide on anti-greenwashing, which sets out the main principles of greenwashing and how to avoid it. 

Decrees have also been published to regulate specific green claims, including Decree No. 2022-539 of 13 April 2022 on carbon offsetting and carbon neutrality claims in advertising. This decree defines the terms and conditions for advertisers to communicate the carbon neutrality of their products or services. It also provides for a set of obligations on advertisers who use such claims, in order to ensure transparency and to prevent any risk of greenwashing. For example, those obligations include a requirement on any advertiser using carbon neutral claims to publish on its online public communication site (or failing that, on its mobile application) a summary report describing the carbon footprint of the product or service being advertised and the process by which the greenhouse gas emissions relating to that product are first avoided, then reduced, and finally offset. 

2. Introduction of stricter rules regarding green claims and environmental marking 

Producers and importers of waste-generating products must inform consumers about the environmental qualities and characteristics of those products, such as their durability, the incorporation of recycled material, the use of renewable resources, compostability, repairability, re-usability, and recyclability. Non-compliance with these provisions will be heavily sanctioned as of 1 January 2023. 

Climate and resilience law also provides for the introduction of compulsory environmental labelling of goods and services in certain sectors considered as priorities, such as the clothing, hotel, food, end electronics sectors following an initial testing phase of 5 years.  

Certain green claims are prohibited outright: for example, it is forbidden to use the terms “biodegradable” and “eco-friendly” (or any other equivalent terms) on a product or on product packaging. 

Other types of claims are strictly regulated. For example, claims relating to the “recycled” nature of a product must indicate the percentage of recycled materials actually incorporated in it. 

The use of the term “compostable” and the phrase “Do not throw in the nature” are also subject to strict rules, namely that: 

• Plastic products and packaging that can only be composted in an industrial unit may not be labelled as "compostable"; and 
• Plastic products and packaging that can be composted at home or in an industrial composting facility must be labelled "Do not throw in the nature". 

Soft law sources indicate that claims such as “environmental” or “green” should be used with great caution, as they are considered to be ‘global’ claims in the sense that they do not refer to a particular environmental characteristic (such as the recyclability of a product) but suggest an overall benefit for the environment. 

Therefore:  

• They should be used only if there is a significant reduction in the main environmental impact of the product throughout its life cycle, 
• They should be displayed on the packaging of the product, 
• They should not mislead the consumer about the environmental safety of the product. 

Advertisers should therefore be particularly careful when making such claims in their advertisements.  

3. Stricter rules emerge regarding advertising and commercial practices which undermine sustainability goals 

Major developments have been implemented in France regarding advertising and commercial practices which would undermine green transition and sustainability efforts. In particular: 

•  A ban on advertising for fossil fuels and the most polluting vehicles, with the exception of fuels made from at least 50% renewable energy, was introduced as of 22 August 2022. This included a ban on advertising for the most polluting new cars from 1 January 2028. A breach of these prohibitions will be punishable by a fine of EUR 100,000 for legal persons (and this amount can be increased up to the total amount of the cost incurred for the advertising or the practice that constitutes the offence). 
• A ban on advertising that encourages the scrapping of products (i.e. equipment that has become unusable), for example: 
  • from 1 January 2021, all advertising or commercial communication aimed at promoting the disposal of products must include information encouraging re-use or recycling; and 
  • any advertising that encourages the degradation of products that are still in normal working order and which seeks to prevent their re-use or recycling is prohibited.  
• A prohibition has also been introduced against advertising claims stating that a good or service is “carbon neutral” (subject to certain exceptions). Infringement to this obligation can be punished by a fine of EUR 100,000 for legal persons, and this amount can be increased up to the total amount of the cost incurred for the advertising or the practice that constitutes the offence. 
•  The definition of “misleading commercial practice” has been expanded to cover misleading green claims. In order to fight against greenwashing more effectively, the Climate and Resilience Law explicitly states that advertisements making misleading claims about the environmental impact of a product or service are forbidden. The sanctions for breaches of this provision have also been reinforced: the Climate and Resilience Law provides for an uplift in financial sanctions where they involve misleading environmental claims, from 50% to 80% of the total amount of the cost incurred for the advertising or the practice that constitutes the offence. (The standard fine for all misleading commercial practices, being the higher of EUR 300,000 or 10% of the advertiser’s average annual turnover, remains in force.) 

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