Empowering Consumers Directive: A turning point for environmental advertising
The Empowering Consumers Directive is being implemented in the Unfair Competition Act (UWG).
The Empowering Consumers Directive (EmpCo) aims to provide consumers with more accurate and reliable information on the sustainability of products in future. Transparent and credible environmental claims, sustainability labels and information on durability are essential for making informed purchasing decisions. In the long term, this should support more sustainable consumer behaviour.
New requirements apply from 27 September 2026
The requirements, which impose new obligations on advertising companies and certifiers with regard to their advertising activities towards consumers, must be transposed into national law by 27 March 2026. The new regulations will apply from 27 September 2026. To this end, the German government published two draft bills in September 2025, which are intended to bring the UWG and consumer contract law into line with the new requirements. The bill to amend the UWG was approved by the Bundesrat on 30 January 2026.
As the EmpCo does not provide for an extension of the deadline or an exemption for advertising materials or packaging produced and/or placed on the market before 27 September 2026, the Federal Council and the Bundestag called on the Federal Government to advocate at EU level for a one-year sell-off period for products produced before the deadline. This seems particularly sensible in light of the directive's objective of achieving progress in ecological change in order to avoid the destruction of goods and advertising materials.
The EU has not yet responded to this, so we must prepare for the new regulations to come into force on 27 September 2026. The reference by the German legislator in the explanatory memorandum to the government draft (p. 40) to the possibility for courts to grant use-up and transition periods is likely to be of little help and, in particular, does not provide the necessary legal certainty. In any case, the Competition Centre has announced that it will pursue potential legal violations without further delay.
The main changes in the Empowering Consumers Directive
The German legislature had little leeway for the implementing law. It is therefore not surprising that the new provisions of the UWG are very close to the text of the Directive. The legal definitions contained in the EmpCo, such as "general environmental claim", "environmental claim", "recognised outstanding environmental performance", "sustainability label" and "certification system" are adopted almost unchanged in Section 2 UWG. The definitions, some of which are very broad, are explained in more detail in the recitals of the EmpCo. However, ambiguities and, in particular, uncertainties regarding the interpretation of the definitions of "environmental claim", "recognised outstanding environmental performance" or "sustainability label" remain and will probably require clarification by case law. Here, the opportunity to achieve greater clarity of these legal terms at least at national level through the explanatory memorandum to the law has been missed.
Support is provided, at least to a certain extent, by the European Commission's preliminary and non-binding "Questions & Answers" document on EmpCo ("FAQ"). In addition to explanations of the individual new prohibited practices, including their broad definitions (see above and below), the Commission proposes, in view of the applicability of the new regulations from 27 September 2026, that stickers (with additional information) be affixed to packaging or that additional information be displayed or used at the point of sale (Question 18 of the FAQ).
Another significant change is the expansion of the "list of business practices that are prohibited without exception" in the annex to the UWG. Without the possibility of assessment, the following, among other things, will be prohibited in future:
General environmental claims (No. 4a. of the Annex)
In future, companies will no longer be allowed to make general environmental claims such as "environmentally friendly", "ecological" or "climate-friendly" without being able to demonstrate recognised outstanding environmental performance. Exception: The general environmental claim is included in a permissible sustainability label or is clearly and prominently specified by supplementary information on the same medium.
Although the FAQs do not really offer any assistance in interpreting the term "general environmental claim" per se, they clarify in question 4 that a lack of space (e.g. on packaging) does not exempt a company from the obligation to provide specific information. In this case, general environmental claims should not be used (if recognised outstanding environmental performance cannot be demonstrated).
General environmental claims without sufficient specification can only be used if recognised outstanding environmental performance can be demonstrated, which requires exceptional environmental performance in accordance with EU law or environmental labelling schemes. Question 7 of the FAQ cites the EU Ecolabel, the Nordic Swan and the Blue Angel as examples in this context and states that statements such as "better for the environment", "environmentally friendly", "green" or "ecological" may be permissible under the EU Ecolabel. The German explanatory memorandum (p. 28) indicates here that it is not necessarily the term used as a general environmental statement that is subject to these regulations, but that advertisers can allow themselves some creativity in this regard.
False statements about the advertiser's overall product or activity (No. 4b. of the Annex)
Environmental claims must not refer to the entire product or business activity if they actually only relate to individual characteristics or components of the product or business activity.
Use of sustainability labels (No. 2a. of the Annex)
Companies are no longer permitted to use their "own" or "self-created" environmental or sustainability labels, even if they contain accurate factual statements. Such labels must be based on a recognised certification system or have been established by a government agency.
The FAQ under question 5 also points to the very broad definition of sustainability labels, suggesting that a wide range of applications is likely:
When designing packaging, companies should be aware that certain visual elements such as green leaves, water droplets or similar nature-related symbols may be interpreted by consumers as implicit environmental claims which, in combination with a written statement or logo, may be subject to the requirements of the EC Directive depending on the context and presentation, for example in relation to general environmental claims or sustainability labels.
(...) For example, a green leaf or a water drop in combination with logos or next to statements about sustainability or natural ingredients may be perceived by the average consumer as a voluntary mark of trust or quality.
Even though the FAQs emphasise that an individual assessment based on subjective consumer understanding must always be carried out, the interpretation of sustainability labels is very broad and can therefore be applied to a wide range of designs. The design of logos, colour schemes, registered trademarks and/or designs, etc. should therefore be checked with regard to the possibility of a sustainability label.
Question 17 of the FAQ clarifies that sustainability labels awarded or introduced by authorities of non-EU member states are prohibited unless these labels are based on a certification system.
Statements on environmental impact when offsetting greenhouse gas emissions
Product-related advertising with environmental claims based on greenhouse gas compensation measures will no longer be permitted in future. The legal regulation is not aimed at company-related advertising involving compensation measures.
In addition, advertising statements about future environmental performance, such as "climate neutral by 2040", will in future be subject to strict requirements in accordance with Section 5 (3) No. 4 UWG, which include, in particular, the provision of a detailed and realistic implementation plan and verification by an expert. According to the FAQ (question 12), a "regular" expert review at one- or two-year intervals is recommended, depending on the type and scope of the advertising statement.
Consequences of a violation
The new prohibited practices – like many current unfair practices – are not only punishable under civil law with injunctions, disclosure and damages, but can also be subject to fines of up to 4% of annual turnover if they are carried out as part of a widespread violation in several EU member states. It is no secret that the CPC network has initiated corresponding proceedings in recent years for violations of the UCPD.
The Empowering Consumers Directive requires immediate action
Even though German courts already apply very strict standards when reviewing sustainability-related advertising claims, companies would be well advised to adapt to the new regulations at the start of the "implementation and application year" and to keep themselves regularly informed about the latest developments in case law and legislation.
The authors of these blog posts (Heike Blank and Katja Middelhoff) not only have the competition law expertise and experience in connection with ESG-related advertising claims for this overview, but can also draw conclusions about industry practices and challenges in practical implementation from their consulting practice.
