In a recent landmark judgment, the Amsterdam District Court found that certain marketing claims of Dutch airline KLM contained misleading environmental claims.
Class action
The Netherlands is a front-runner in climate change civil litigation. In a number of landmark cases, both government as well as private companies have been confronted with class action claims brought against them to further their climate change mitigation efforts.
In the famous Urgenda judgment, the Supreme Court ordered the Dutch state to reduce its greenhouse gas emissions. In the Shell case (that is currently being litigated in appeal) the first instance District Court of The Hague ruled that Shell has an obligation to reduce the Shell group's CO2 emissions with 45% by 2030.
While these climate change cases are grounded on constitutional and human rights, the KLM case is the first case in the Netherlands where such a class action is brought against a company based on misleading environmental advertising.
The environmental claims
The cases revolved around 19 environmental claims, communicated by KLM through its social media channels, website as well as via billboards. These included amongst others, the following statements:
1. “Together towards more sustainable travel”
This is part of an (advertising) video that can be found on KLM's Fly Responsibly website, containing the following claim:
“Fortunately, the way we travel is changing
And together we are moving towards a more sustainable future
Because travelling more sustainably is our greatest adventure ever
Together towards more sustainable travel”
The Court held that the advertisement is not sufficiently concrete about what environmental benefit will be achieved and to which aspects of (flying with) KLM this then relates. KLM communicates quite firmly that consumers are heading for a more sustainable future with KLM, while it is not clear whether and if so how flying with KLM contributes to this. The ad also fails to sufficiently clarify that this is merely an ambition of KLM. Even though KLM also explained in its advertising that they are an airline and realize that aviation today is far from sustainable, the advertisement is found to be misleading.
2. “Join us in creating a more sustainable future”
This claim was published on a poster on a billboard (see above) at Schiphol Airport showing a child sitting on a swing, against a background of sky, water and mountains.
The advertisement is considered misleading for the same reasons as mentioned above for ad #1 (not sufficiently concrete and detailed). In addition, the background reinforces the impression that there are environmental benefits to be gained by ‘joining KLM’ without making it clear in what way. This ad is therefore also found to be misleading.
3. “Fly Responsibly”
This claim was published on the website, with the text: “With Fly Responsibly, KLM is taking the lead in creating a more sustainable future for aviation. We recognise the urgent need to limit global warming. That is why we are committed to the goals of the Paris climate agreement. But we can only succeed if we all work together. So join us today for a more sustainable future.”
The Court holds that KLM seems to have aligned its own environmental objectives with the Paris climate agreement targets. The feasibility of KLM’s objectives (and therefore also the linked Paris agreement targets) are however, in the advertisement, made conditional on cooperation with others (“all work together”) and are not formulated in concrete, measurable and specific terms. This ad is therefore also found to be misleading.
4. “KLM Group CO2 emissions have decreased significantly”
The table outlines the KLM Group's CO2 emissions over the period from 2005 to 2020 and an ambition for 2030. Given the statistics provided, the text accompanying the table that CO2 emissions have been steadily decreasing, is not incorrect. Therefore, the statement is not considered misleading and does therefore not constitute an unfair commercial practice.
5. “Smaller carbon footprint, more forests.”
This slogan was accompanied with the following logo and additional text:
“For ten years, we have offered you a simple service that allows you to offset your personal share of your flight's CO2 emissions. With our CO2ZERO service, you can reduce the impact of your flight on the environment (...).”
The Court underlines that the term CO2ZERO creates the impression that customers thereby (can) contribute in a relevant way to zero CO2 emissions. This is therefore an absolute claim, that has a high threshold of use as the claim of zero CO2 emissions is very hard, if not impossible to proof. Secondly, the ad seems to suggest that there is a link between the customer's contribution and reducing the negative environmental aspects of the customer's own flight. It incorrectly gives the impression that the customer can completely erase the negative effects of CO2 emissions caused by himself. Moreover, the Court held that the impact of reforestation, even though a welcomed initiative, is uncertain because, for example, it is not clear whether the trees will remain permanently. Against this background, the statement is considered misleading.
6. “Sustainable Aviation Fuels: a promising solution”
In its explanation of this claim in the KLM website, KLM states that the world is still far away from using SAF as alternative fuel source. Globally, 0,1% of the fuel used is SAF. KLM argues that it uses 10x as much, being 1% of its fuel sourced as SAF. It acknowledges that this is still a small amount but strives to increase it to 10% of its entire fuel consumption.
SAF is presented by KLM as ‘sustainable’ aviation fuel. Although SAF can contribute to reducing the harmful environmental aspects of flying, the term ‘sustainable’ as used by KLM is considered too absolute and not concrete enough. The statement that it is a ‘promising solution’ also paints too rosy a picture. Even though KLM then nuances the share of SAF and its application on a larger scale to some extent, it does not do so sufficiently. The fact that a more substantial share of SAF can be expected in the distant future, is too uncertain. The ad is therefore considered misleading.
Comment
In conclusion, the Amsterdam Court found that KLM's marketing claims contained (in most cases) misleading environmental claims, characterized by vague and generalized statements about uncertain environmental benefits. It further found that, in other statements, KLM painted an overly optimistic picture of the effects of measures such as Sustainable Aviation Fuels (made from renewable sources) and reforestation. These measures only marginally reduce the negative environmental aspects and therefore wrongly created the impression that flying with KLM is sustainable.
The ruling has garnered attention both within legal circles and in the public domain, as it sets a precedent for the accountability of corporations in their sustainability advertising practices. It underscores the importance of transparency and accuracy in corporate communications, particularly in matters related to environmental and social responsibility. Additionally, it highlights the role of collective action in holding companies accountable for misleading advertising and seeking redress for affected consumers.
For more information on sustainability claims and greenwashing in the Netherlands, please contact: Rogier de Vrey, Marcoline van der Dussen
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