Green marketing in Italy: how to avoid unlawful “green washing”
«The so-called environmental or green claims, aimed at suggesting or evoking a minor or limited environmental impact of the product offered, have become an important advertising tool capable of significantly influencing the consumers’ purchasing choices, due to the latter’s increased sensitivity towards these issues. For this reason, they must report the environmental benefits of the product in a precise and unambiguous way, be scientifically verifiable and, finally, be communicated correctly” (Italian Competition Authority, decision no. 28060 of 20.12.2019).
The European Commission, in its “Guidance on the implementation/application of Directive 2005/29/EC on unfair commercial practices”, provided some practical indications to follow in order to realise green marketing campaigns in line with the applicable laws. In particular, traders should:
present their green claims in a clear, specific, accurate and unambiguous manner
have the evidence to support their claims (preferably provided by independent third parties) and be ready to provide it to competent enforcement authorities
avoid using a deceiving context (e.g. graphical elements) even if used to provide correct information
avoid vague and general statements of environmental benefits such as ‘environmentally friendly’ or ‘green’
take into account the product’s main environmental impacts over its lifecycle
review and update the claims regularly to ensure that they remain relevant
not unduly emphasise attributes that come from regulatory requirements
in case of comparison with other products on the market, compare goods or services meeting the same needs or intended for the same purpose and objectively compare one or more material, relevant, verifiable and representative features of those goods and services.
When these requirements are not met, the trader risks putting in place a so-called “green washing” practice, aka the misappropriation of environmental virtues aimed at creating a “green” image that does not really represent the company’s true environmental impact. Various Italian laws censor the practice of green washing, in particular:
Articles 20-23 of the Consumer Code (Legislative Decree no. 206/2005) and Articles 2-3 of Legislative Decree no. 145/07 sanction unfair commercial practices which are contrary to professional diligence or are misleading and capable of distorting the economic behaviour of their recipient, leading her/him to take an economic decision that she/he would not otherwise have taken;
Article 2598 of the Civil Code, according to which anyone who directly or indirectly avails himself of means that do not comply with the principles of professional correctness, and capable of damaging another company, carries out acts of unfair competition;
Articles 2 and 12 of the Advertising Self-Regulation Code, which require that commercial communication must not mislead consumers and, where it declares environmental benefits, must be based on truthful, relevant and scientifically verifiable data.
The negative consequences that the company risks encountering, in the event of unlawful green washing, include not only the prohibition of further dissemination of the commercial communication, with the application of a penalty for non-compliance and an order to publish the relevant decision, but also sanctions by the AGCM of up to 5 million euros and damages orders by the ordinary Courts.