What are the top three developments in Belgium concerning green claims and the associated risk of greenwashing?
Following the global trend, Belgian consumers are increasingly interested in the ecological impact of the products and services they buy. Traders react accordingly and are increasingly focusing their advertising on the characteristics of their products and services that are beneficial for the planet. However, advertisers must be cautious. The regulator, the advertising industry and the courts are increasingly scrutinising whether green advertising is truthful or potentially misleading to consumers.
The general legal framework regarding misleading commercial practices can be found in Book VI of the Belgian Code of Economic Law, which transposes the European Unfair Commercial Practices Directive N° 2005/29 into Belgian law. We have identified below some key trends in how misleading commercial practices are interpreted by the Regulator (the Ministry of the Economy), by the Jury for Ethical Practices regarding advertising (JEP, the body for self-regulation in advertising) and by the courts.
1. Regulator issues guidelines on the interpretation of legal criteria relevant to greenwashing, but introduces inconsistency with the current law
The statutory prohibition against misleading commercial practices, which include advertising, is relatively broad: a commercial practice shall be regarded as misleading if it is able to deceive the average consumer (through an act or an omission) and if it causes or is likely to cause the consumer to take a transactional decision that he would not have taken otherwise (Article VI.97 Code of Economic Law).
To clarify how to apply these general principles in practice, the Regulator published in May 2022 its Guidelines on Environmental Claims that are available here in Dutch and in French. While the initiative to provide more guidance on environmental claims and greenwashing must be applauded, the formulation of the new Guidelines is disappointing.
For instance, the Regulator provides in the Guidelines that “vague and ambiguous terms should not be used if they are not defined in the advertisement”. However, in practice, many advertisements are vague and ambiguous and make statements that lack any clear definition. At present, the law stipulates that such statements are lawful as long as they do not mislead consumers. Advertisements are seen as communications which may create impressions and feelings in a consumer – but they are not treated as binding contracts based on strict legal definitions.
Another example is the Regulator’s directive for advertisers not to focus solely on environmentally friendly aspects of their offering, while deliberately omitting or concealing details of their less environmentally friendly attributes. By law, however, advertisers remain free to select the features that they want to highlight, and there is no legal requirement to advertise both the pros and the cons of a product or service in a balanced way.
The Regulator also prescribes that, in relation to the packaging of household products, a trader should not be allowed to use colours that evoke an impression of nature, if the product has no positive or a very limited positive effect on the environment. The Regulator’s stance is surprising, as it would amount to a de facto ban on household products that use green packaging merely because they have little or no positive effect on the environment.
The good intentions of the Regulator are therefore undermined by the failure of some of the guidelines to reflect the current law, making them legally unenforceable. This affects the credibility of the Guidelines on Environmental Claims as a whole and limits their usefulness as a helpful tool for traders seeking to make lawful and responsible environmental claims.
2. Environmental Advertising Guidelines and decisions by the Jury for Ethical Practices (“JEP”) offer guidance based on ethical principles, but lack clarity and consistency
The JEP is the self-disciplinary organization of the Belgian advertising sector. Its task is to ensure that advertising is fair and ethical. It consists of representatives from advertisers (such as Coca Cola, Procter & Gamble among others), the media sector (including classic media, social media such as Facebook, and Google) and of ‘civil society’ (including companies protecting consumer rights, universities and magistrates). Consumers and the government can bring a complaint against advertisements published by the media. In response to a complaint, the JEP will assess whether an advertisement complies with the law and with its ethical guidelines. If not, the JEP will prohibit any further use of the advertisement.
The JEP has also issued its own Environmental Advertising Guidelines, available here in Dutch and in French. The JEP Guidelines are very broad and imprecise, but that is to be expected as they are based on ethical grounds and not intended as legal guidance.
The drawback of broad ethical guidelines is that they are difficult to apply consistently. In disputes where JEP has been called to intervene, it has not adopted a consistent approach on what types of claims are allowed or prohibited. In one example, Hyundai was asked to stop using a (seemingly innocent) advertisement stating that “no other brand has such a broad range of ecological cars”, directing customers to its website “Hyundai.be”. The JEP found that Hyundai should not use the words “ecological cars” because cars are by definition not environmentally friendly. Hyundai’s argument that many of its cars are more environmentally friendly than competing cars was rejected by the JEP, even though that argument might have been factually correct. The JEP decision of 5 February 2021 can be found here in Dutch and in French.
3. Few greenwashing claims reach the Belgian courts, and judicial approaches vary
Overall, there is limited case law relating to greenwashing in the Belgian courts. Businesses seem reluctant to sue their competitors before the courts, knowing that a claim about unfair advertising often results in a counterclaim for similar unfair advertising.
One key element to keep in mind in legal proceedings is the requirement that an advertisement is only misleading (and therefore prohibited) if “it causes or is likely to cause the consumer to take a transactional decision that he would not have taken otherwise.” Some courts have taken a liberal approach and concluded that green claims, even if they were not 100% accurate, did not constitute misleading commercial practices, because the degree of inaccuracy was limited and would therefore not have influenced the consumer’s economic decision.
In one such case, the Court of Appeal of Brussels considered a claim that a soap bottle was made 50% out of plastic recycled from the ocean, while in reality the percentage was lower than 50% and the plastic was recovered from ocean beaches. It held that the advertisement did not constitute a misleading commercial practice and did not prohibit further use of this advert, because it found that the average consumer would interpret the environmentally friendly claims in a general sense rather than taking them literally. The average consumer’s economic behavior would not have been any different if the claims about the soap bottle had been stated with 100% accuracy (Brussels Court of Appeal, 28 June 2019, Werner & Merz “Froggy” v. Ecover).
An important difference between the JEP’s guidelines and the laws applied by the courts lies in the burden of proof. With regard to environmental claims, the JEP requires the advertiser to be able to prove that its claims are truthful. In proceedings before the courts, however, the long-standing principle is that the burden of proof rests with the plaintiff, and not with the advertiser who acts as the defendant. Some judges appear to have overlooked this essential rule of legal proceedings and have been quick to conclude that an environmental claim is misleading because the advertiser was unable to demonstrate that its claim is 100% correct. While this reasoning is acceptable in proceedings before the JEP, it is procedurally incorrect to place the burden of proof on the defendant in advertising greenwashing cases before the courts. The incorrect assumption that the burden of proof rests with the advertiser is also reflected in the Regulator’s “Guidelines on Environmental Claims” (referred to in point (i) above), requiring advertisers “to provide documentary evidence based on scientific information” and “to prepare a file with all the evidence to support a claim before publication”.
There is accordingly considerable uncertainty, lack of consistency and a need for further clarity in the legal, regulatory, and ethical guidance available to advertisers in the Belgian market.
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