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Consumer Policy - Policy Developments - Environmental Claims

Outline of a possible Community approach in the area of Green Claims - consultation document

Introduction

This document presents an outline of a possible approach at Community level to contribute to ensure that self-claims by economic operators about the environmental characteristics of products and services supplied are not misleading and can serve the purpose of promoting a more sustainable consumption.

The claims considered are those made without independent third party certification, by manufacturers, importers, distributors, retailers, NGOs or anyone else likely to benefit from such claims.

In the draft ISO standard 14021, a definition of self-declared environmental claims (self-declared environmental claims) is given as "environmental claim that is made, without independent third-party certification, by manufacturers, importers, distributors, retailers or anyone else likely to benefit from such claims".

In the same standard, an environmental claim is a "statement, or symbol that indicates the environmental aspects of a product". It is noted that an environmental claim may be made on product or packaging labels, through product literature, technical bulletins, advertising, publicity or similar applications.

As explained in this document, the aims of the approach considered are twofold:

  • To contribute to prevent misleading green claims in order to

- Protect consumer interests

- To protect the concerned economic operators against the unfair consequences of such misleading claims 1

  • To promote reliable green claims in order to

- Ensure that consumers can play a part to progress towards more sustainable consumption, by making informed choices of more environmentally friendly products and services.

- Contribute to ensure more favourable marketing conditions to companies supplying more environmentally friendly products and services.

The approach proposed is framed within, and complements the general Community regulatory framework on misleading advertising, notably Directive 84/450/EEC concerning misleading advertising.

It should also be regarded as an element of a wider Community strategy to promote sustainable consumption, which will include an integrated environmental product policy.2

This overall strategy is presently being considered by the Commission (Directorate-General for the Environment - DG XI).

Present situation in the EU on Green Claims

A questionnaire on environmental product claims, developed by the Commission (Health and Consumer Protection Directorate-General), has been sent to the Member States on 31 March 1998. The objective was to improve the knowledge about relevant existing instruments and measures at national level.

A study on Green Claims has been recently produced by the independent consultant PROSPECT, at the initiative of the Commission (Health and Consumer Protection Directorate-General). The study has examined the present practice on green claims, the instruments available to the EU Member States to control misleading green claims, the results achieved and outstanding problems. An inventory of policy options in this area has also been provided.

The results of the study have been presented and confirmed in an experts meeting organised by the Commission (Health and Consumer Protection Directorate-General) on 21 April 1999.

An Expert Group on Green Claims has been convened by the Commission. This Group includes representatives of the competent administrations of the Member States, of the main stakeholders concerned (consumers, industry, the advertising industry, commerce, environmental NGOs, international organisations).

The mandate of the Group is to assist the Commission in identifying needs and possibilities for Community action in the area in question and in preparing the appropriate initiatives and proposals.

The main indications emerging from the answers to the questionnaire and from the study are the following:

  • In most Member States where Green Claims are a potentially powerful sales argument, the worst excesses of claims as occurred in the 1980's in the traditional advertising media have been successfully limited.
  • In general, on-pack green claims have increased. These claims are more difficult to control. They are often a source of confusion (claims referring to the packaging which can be mistaken to apply to the product; denoting recyclability, meaningless in the absence of specialised local facilities; denoting that a fee has been paid, but suggesting eco-qualities ...).
  • New advertising techniques have emerged, using subliminal advertising (images, colours) to promote both individual products and, increasingly, corporate image.

These new forms of advertising often falsely suggest general progress in product or process design, weakening consumer motivation to look for environmentally friendly alternatives.

  • There has been a proliferation of logos, symbols, eco-labels, some of good quality, others uncontrolled. This has created great confusion and further deprived environmental claims of credibility.
  • All Member States have in place systems to deal with misleading claims including green claims. However, the approaches are different and their effectivenesses seem significantly uneven. Moreover, on-pack claims and the new types of "green" advertisements mentioned above largely escape control systems in place.
  • The effectiveness of control systems based on a complaint procedure is hampered by the substantial efforts and resources which would be involved in taking systematic action, the fact that individual consumer damage is small (and therefore difficult to prove) and by the quantity and speed of production and change of claims made.

The objectives of a Community approach in the field of green claims

A Community regulatory framework is in place for misleading advertising, which applies i.a. to green claims.

The objectives of Directive 84/450/EEC on misleading advertising are to ensure the proper functioning of the internal market, prevent distortion of competition and protect consumer interests.

Directive 84/450/EEC relating to the approximation of the laws, regulation and administrative provisions of the Member States concerning misleading advertising, was adopted in 1984 and is applicable since 1 October 1986. It was amended in 1997 by Directive 97/55/EEC, in order to include provisions on comparative advertising.

The purpose of the Directive is to protect, against misleading advertising, consumers, economic operators and the general public.

It applies to any form of advertising ("the making of a representation in any form ...") for goods or services. Misleading advertising is defined as "any advertising which ... deceives or is likely to deceive the persons to whom it is addressed or whom it reaches and which ... is likely to affect their economic behaviours ... or to injure a competitor".

The Member States must ensure means for the control of misleading advertising. Persons or organisations with a legitimate interest must have access to such means, in particular by taking legal action and/or bring the issue to an administrative authority. The Member States decide who has a "legitimate interest" and the stages and details of the procedures applicable. The courts or competent authorities must have the power to order cessation or prohibition of misleading advertisement and may have the power to require publication of their decision or of corrective statements

In addition, courts or administrative authorities must be conferred powers to require under certain circumstances the advertiser to furnish evidence as to the accuracy of factual claims and to decide whether factual claims are inaccurate. Voluntary control and self-regulation are mentioned as possible complementary action.

These objectives would also apply to any additional, specific action on green claims. However, possible action on green claims should also be conceived in relation to Community environmental policy.

The Community has, among its tasks, to promote sustainable development. Environmental policy objectives must be integrated into the formulation and application of all other Community policies, including consumer policy. In turn, Community consumer policy, which includes the right of consumers to information, must be taken into account in other policies.

The Treaty includes the following provisions related to sustainable development and the integration between the environmental and consumer policies:

"Article 2 (ex Article B)

The Union shall set itself the following objectives:

- to promote economic and social progress and a high level of employment and to achieve balanced and sustainable development, in particular through the creation of an area without internal frontiers, through the strengthening of economic and social cohesion and through the establishment of economic and monetary union, ultimately including a single currency in accordance with the provisions of this Treaty;

................"

"Article 2 (ex Article 2)

The Community shall have as its task, by establishing a common market and an economic and monetary union and by implementing common policies or activities referred to in Articles 3 and 4, to promote throughout the Community a harmonious, balanced and sustainable development of economic activities, a high level of employment and of social protection, equality between men and women, sustainable and non-inflationary growth, a high degree of competitiveness and convergence of economic performance, a high level of protection and improvement of the quality of the environment, the raising of the standard of living and quality of life, and economic and social cohesion and solidarity among member States."

"Article 6 (ex Article 3c)

Environmental protection requirements must be integrated into the definition and implementation of the Community policies and activities referred to in Article 3, in particular with a view to promoting sustainable development".

"Article 153 (ex Article 129a)

1. In order to promote the interests of consumers and to ensure a high level of consumer protection, the Community shall contribute to protecting the health, safety and economic interests of consumers, as well as to promoting their right to information, education and to organise themselves in order to safeguard their interests.

2. Consumer protection requirements shall be taken into account in defining and implementing other Community policies and activities.

..................................."

Consumers can contribute in various ways to sustainable consumption, in particular as actors on the market place by choosing more environmentally friendly products and services.

In order for them to make informed choices, a crucial pre-requisite is the availability of reliable informations on the environmental characteristics of the products and services offered to them.

Proliferation of misleading or confusing green claims limits the ability of consumers to act in favour of sustainable consumption through their purchasing choices.

Unreliable or misleading green claims limit the potential of serious eco-label schemes, discourage companies to invest in more environmentally friendly products and services and de-motivate consumers to look for such "greener" products and services.

On the other hand, reliable self-claims could play a useful part in informing and making more aware consumers on environmental aspects of their consumption behaviour, as buyers and users of products and services.

However, the full potential of such claims could only be exploited if misleading claims of all sort are successfully curbed.

In conclusion, in addition to the general objectives in the field of misleading advertising, in the specific case of green claims action should also aim at creating the conditions for full use of the potential of such claims for contributing to sustainable consumption, while preventing interference of misleading claims with other policy instruments in the area of environmental communication, like eco-labels.

Needs for specific Community action on green claims

European consumer organisations have repeatedly called for a systematic approach to verification and control of environmental claims at European level. The results of the study mentioned above as well as the answers given to a questionnaire submitted to the Member States3 and the outcome of the experts meeting mentioned above, show a need for clarifying and reinforcing the regulatory framework in place and its operation in relation to green claims of all sorts.

The present approach to act against misleading advertising under Directive 84/450/EEC is based on a generic definition of "misleading advertising" and the establishment of powers and procedures for ex-post intervention (no previous control of advertising or mandatory detailed criteria are included). This approach has to be maintained. It might however be reinforced by more detailed definitions of misleading claims, in particular green claims.

There is also a need to increase the credibility and deterrence of this legislation which only allows ex-post action, by introducing dissuasive sanctions. Cessation of a misleading advertising does not, in general, represent a sufficiently dissuasive means.

On the other hand, specific guidance should be given to economic operators on how to proceed for making reliable claims, and to authorities and consumer organisations about the criteria and standards for assessing green claims.

Defining what should be considered misleading in the field of green claims is conceptually and practically complex (apart from the case of grossly misleading messages and symbols) given in particular the need to take into consideration a life cycle perspective.

Moreover, messages are often presented in a vague or even subliminal manner.

This has led certain Member States, professional bodies and international organisations to identify the need for, and develop guidelines and even specific standards, in particular ISO 14021, sufficiently detailed to allow an effective and consistent assessment of green claims of the very diverse types.

The possible role in the application of the Directive of the specific guidelines and standards which have been developed recently, need to be clarified as it would greatly facilitate its effective operation.

The standard ISO 14021 specifies the requirements for self-declared environmental claims, including symbols, regarding products. It further describes selected terms commonly used in environmental claims and gives qualifications for their use. This standard also describes a general evaluation and verification methodology for self-declared environmental claims and specific evaluation and verification methods for the selected claims or labelling in this standard.

ISO 14021 does not preclude, override, or in any way change, legally required environmental information, claims or labelling, or any other applicable legal requirements.

The stated objectives of ISO 14021 are:

(a) accurate, verifiable and non-deceptive environmental claims;

(b) an increased potential for market forces to stimulate environmental improvements in production, processes and products;

(c ) prevention or minimisation of unwarranted environmental claims;

(d) a reduction of marketplace confusion

(e) facilitation of international trade;

(f) an increased opportunity for purchasers, potential purchasers and users of the product to make more informed choices.

This standard is part of a series of international standards:

ISO 14020: 1998 Environmental labels and declarations - General principles

ISO/FDIS 14021 Environmental labels and declarations - Self-declared environment claims (in course of preparation)

ISO 14024: 1999 Environmental labels and declarations - Type I environmental labelling - Principles and procedures

ISO/WD 14025 Environmental labels and declarations - Type III environmental labelling - Principles and procedures

The following definitions are used by ISO:

Type I environmental labelling programme: voluntary, multiple-criteria-based third party programme that awards a license which authorises the use of environmental labels on products indicating overall environmental preferability of a product within a product category based on life cycle considerations.

Type II environmental labelling (self-declared environmental claims): environmental claim that is made, without independent third-party certification, by manufacturers, importers, distributors, retailers or anyone else likely to benefit from such a claim.

Type III environmental declaration: quantified environmental data of a product under pre-set categories of parameters set by a qualified third party and provided within a Type III environmental programme.

Type III environmental declaration programme: Voluntary programme, providing type III environmental declarations based on LCA according to the ISO 14040 series verified by a qualified third party.

Reinforcement of the Directive alone could not solve all problems. Appropriate initiatives are needed in order to facilitate effective and consistent assessment of misleading green claims, through the EU, by the competent authorities/bodies. A pro-active role of the interested parties, authorities, economic operators and consumer associations is essential.

In this respect, there is in particular a need for systematic monitoring of the functioning of systems in place to deal with such claims, and of the claims themselves. Such monitoring should involve consumer organisations and the interested economic operators.

In all these respects, the possible use of specific standards on green claims and guidance on how to prepare and assess claims against such standards, should be considered.

Elements of a Community approach for green claims

The following elements are proposed for consideration in view of an approach aimed at reinforcing and completing the Community framework applicable to green claims:

Directive 84/450/EEC

A proposal for amending this Directive is presently under preparation. It should be considered whether the amendments might include, among other things, the following points:

  • Clarify the scope of the Directive, in particular that the Directive applies also to any sort of claims (on-pack claims in particular).
  • Confirm the illegality of misleading advertising/claims (presently the text includes provisions on powers and procedures to act against misleading advertising claims, but does not state the illegality explicitly).
  • As a logic consequence of the obligation on economic operators not to make misleading claims, introduce effective, proportional and dissuasive sanctions in case of breach of that obligation, in addition to prohibition or cessation of the claims in question.
  • Introduce the essential requirements applicable to green claims. These should be the basic principles and criteria to be applied to this type of claims (see the preliminary examples provided in the Annex).
  • Reinforce the reversal of the burden of proof, so that it is the advertiser who has to proof the non-misleading character of the claim
  • Provide that compliance with standards developed by the European standardisation institutes (taking into account as appropriate the relevant international standards), and recognised by the Commission would create a link with the burden of proof and facilitate advertisers' situation. This approach would include elements which are similar to some aspects of the so-called "new approach" Directives.

Under the so-called "new approach" to Community harmonisation of technical rules, launched already in 1986 in order to contribute to the finalisation of the Community internal market, Community harmonisation legislation only defines the "essential requirements" which must be complied with in order to benefit of free access and circulation in the internal market. New approach Directives also fix conformity assessment requirements. This approach has been extensively used in the case of the safety requirements for products.

The technical specifications are not fixed by such Community legislation. The legislation provides for mandates to the European standardisation bodies (CEN, CENELEC, ETSI), which set up standards that are given the status of "European harmonised standards". Compliance with such (voluntary) standards confers presumption of conformity to the (mandatory) essential requirements of the Directives considered. The standards are completed and updated continuously.

The "essential requirements" are usually set in a very generic way in the legislation. They indicate the broad objectives, criteria and conditions to be complied with..

Standards on green claims

Consider the option of a mandate to CEN to adopt a European standard, transposing the future standard ISO 14021.

It should in this context be examined whether any adaptations are necessary or appropriate and desirable, under the European conditions, to ISO 14021.

It should be noted that, pending the adoption of a European standard, ISO 14021 could play the role of an important reference, facilitating in practice the operation of the Directive.

It should also be noted that, as an effect of the adoption of a European standard, the possibility of diverging national standards would be prevented.

Guidelines for assessment of green claims

The ISO 14021 standard is a complex document and the variety of green claims is very large. Moreover, standards are not mandatory and in the case of non-application of the relevant standard, the claims may need to be assessed in the light of the general requirements of the legislation.

Therefore, it might be considered to develop guidelines on how to assess green claims against the standard and, when the standard is not applied, against the general requirements applicable. These guidelines could serve as a practical explanatory instrument (code of good practice in establishing/verifying/independently assessing green claims, including use of life-cycle-analysis). The code of good practice, in conjunction with the existing Directive, might help bridging the gap till the entry into force of a revised Directive.

Such guidelines would help both companies to draft their advertising in compliance with the standard and competent bodies and consumer associations assessing green claims.

Various options could be considered as far as the status and use of the guidelines are concerned. The guidelines, developed with the involvement of all stakeholders, could be taken up in a Recommendation. Under a revised Directive the guidelines might be given an up-graded status, by incorporating them in an Annex, or mentioning them in an Article.

Monitoring of green claims

Systematic monitoring exercises, jointly performed by the competent authorities, consumer associations and the associations representing the economic operators interested, may be a necessary element to ensure the effectiveness of an overall strategy for green claims.

These monitoring activities could cover both the green claims and the effectiveness of the systems in place to act against misleading claims.

The broad lines of the monitoring exercises could be established at Community level, leaving sufficient flexibility in order to take into account specific national systems, conditions and needs.

Exchange of information on the results of such monitoring exercises could be foreseen.

The Member States could ensure the financing of the exercises of national level, whereas the Commission could finance co-ordination activities at EU level.

The framework for these monitoring exercises could be possibly established in a specific Council decision or as part of an overall legal framework on Administrative Cooperation, such as was suggested in the Consumer Policy Action Plan 1999-20014.

ANNEX - DRAFT

Essential requirements for environmental claims

(to be considered as preliminary examples to launch the discussion - to be adapted in the framework of the discussions on the revision of dir. 84/450/EEC)

Environmental claims must be:

- Clear, specific, explicit, and understandable by those to whom they are addressed.
Claims must specify in particular:

  • What is/are the positive environmental aspect(s) justifying the claim. Generic and vague claims must be avoided.
  • To what exactly the claim refers (product, packaging, etc) and to what stage of the life cycle it applies.
  • In case of use of images, colours, symbols, and logos, which environmental positive aspects are expressed by the means used.
  • The exact meaning of any message included in the claim, in a way understandable and relevant for those to whom it is addressed.
  • In case of comparative claims, ...(to be completed)..

- Relevant and used in an appropriate context and taking into account the entire life cycle.
Claims must in particular:

  • Only refer to environmental benefits which have materialised or which will materialise under the specific circumstances of those to whom the claims are addressed.
  • Only refer to benefits that are in addition to those related to compliance with regulatory requirements.
  • Not present irrelevant information as environmental improvements.
  • Take into account the balance of environmental effects over the entire life cycle.

- Accurate, substantiated, verified and documented.
Claims must, in particular:

  • Be based on verified facts, data and information.
  • When quantitatively expressed, be based and expressed by accurate figures, presented in a relevant way.
  • When referring to positive environmental effects, be substantiated by sound science.
  • Be supported by appropriate and sufficient documentation available to the claimant.

----------------------------------------

  • 1 See Article 1 of Directive 84/450/EEC (mentioned below) for the objectives in the field of misleading claims in general
  • 2 A separate note is provided concerning the broad lines of such a strategy and the underlying concepts of sustainable development, sustainable consumption and integrated environmental product policy.
  • 3 Health and Consumer Protection Directorate-General developed a questionnaire on environmental claims which was sent to the Member States on 31/03/1998. The results have been summarised in the document "Overview of Member State policy relating to environmental product claims as set out in replies to Commission questionnaire of 2.4.98" and made available to the participants of the first Experts meeting of 21/04/1999.
  • 4 COM(98)696 final

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