Colombia - Sustainability claims and greenwashing
What are the top three developments in your territory concerning green claims and the associated risk of greenwashing?
The regulation of green claims in Colombia derives from the advertiser’s duty to provide truthful information and the consumer’s right to truthful information. Both of these seek to protect consumers from misinformation which could unduly influence their purchasing decisions. Greenwashing has been a growing concern for authorities in the last decade with the increasing number of companies including green claims in their advertisements. Although Colombia is yet to see a national jurisprudential and doctrinal development, the green claims in advertisement have so far been regulated by a Presidential Decree and by the National Agency for Advertisement Self-Regulation. In addition, bills have been introduced in Congress that seek to further develop the regulatory landscape.
1. Green advertising decree issued by the national government.
In 2014, the Colombian President issued Decree No. 1369 laying down the requirements for environmental and green advertising, understood as extending to any piece of advertising which makes reference to a product’s positive environmental characteristics or impact. The following are the requirements set forth by the Decree for the making of environmental or green claims in advertising:
- The claims must be factual and verified;
- All evidence, investigations, studies or proof supporting the claims must be based on the application of avowed technical and scientific methods. This information must be available at all times for the advertiser to provide it to the Consumer Regulator upon request;
- The claims must be complete, truthful, transparent, timely, verifiable, updated, comprehensible, accurate, suitable and no relevant information can be hidden or dismissed in a way which may mislead consumers;
- The environmental or green claims must state whether the advertised characteristics arise from the product itself, its packaging, or from a combination of these components. The claims must also provide clarity on the environmental and/or green benefit which it represents;
- In cases where a previous product is being compared by reference to its environmental and/or green benefits to a more recent product from the same brand, information relating to both products in this regard must be displayed; and
- In cases where two products from different brands are being compared by reference to their environmental and/or green benefits, information relating to both products in this regard must be displayed.
The Decree also appoints the Superintendency of Industry and Commerce (“SIC”) as the Consumer Regulator in charge of enforcing the requirements and establishing the applicable sanctions for their violation.
2. Guidelines set forth by the Colombian Code for Advertisement SelfRegulation.
The National Agency for Advertisement Self-Regulation does not have legislative powers and is an entity based on the principle of private will. However, this Agency issued the Colombian Code for Advertisement Self-Regulation which is applicable to all advertisements published in Colombia. It is important to note that this Code contains no legally binding regulations and therefore advertisers may choose to voluntarily adhere to the Code and to comply with its recommendations and obligations.
Regarding environmental and green claims in advertising, the Code states that all advertisements must be constructed and displayed to specify the way in which they contribute to, among other things, the improvement and development of the country’s environmental position. Also, the Code states that advertisements must be truthful regarding the advertised product’s environmental impact, characteristics and advantages and, whenever possible, encourage behaviours that respect and care for the environment.
3. Bills submitted to the Congress to regulate and sanction greenwashing.
Bill No. 015 of 2022 was submitted in the Senate, aiming at further regulating environmental and green advertising. This Draft Bill is still in the first stage of the legislative process and, therefore, may be subject to major changes in future stages. It currently includes several dispositions regarding the specific requirements for environmental and green claims in advertising, including technical, labelling and criteria‑based obligations for all advertisers. The Bill is set to expand on the requirements previously established by Decree No. 1369 of 2014.
Moreover, in August 2023, Bill No. 101 of 2023 was also introduced in the Senate. It seeks to regulate and sanction the practice of greenwashing by obliging persons advertising sustainability to provide complete, truthful, verifiable, accurate and understandable information, and by proposing that the Ministry of Commerce, Industry and Tourism, together with the Ministry of Environment and Sustainable Development, regulate indicators, standards and certifications on sustainability advertising. It also seeks to include a new article in the Consumer Protection Statute prohibiting the dissemination of misleading or fraudulent advertising related to environmental preservation. Currently, first debate has not been held, so the content of the bill submitted may change as the legislative process progresses.
