Background
Consumers' expectations regarding the impact of products and services on the environment have a growing influence on their economic behaviour. This leads more and more companies to communicate about the sustainability, responsibility and green credentials of their products and services – as they should.
However, these environmental claims must comply with French legislation aimed at tackling greenwashing, which has evolved considerably in recent years, notably with:
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Law no. 2020-105 of 10 February 2020 ("Anti-waste Law for a Circular Economy") which strengthened consumers' environmental information obligations and more strictly framed, or even banned, the use of certain terms such as "biodegradable", "environmentally friendly" or any other equivalent term for waste-generating products.
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Law no. 2021-1104 of 22 August 2021 ("Climate and Resilience Law") which added an environmental dimension to the definition of misleading commercial practices. According to the new provisions, a commercial practice is misleading when it is based on false or misleading claims, indications or representations concerning the essential characteristics of the goods or services, in particular the expected results of its use, notably its impact on the environment.
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French Decrees nos. 2022-538 and 2022-539 of 13 April 2022 which prohibit the use of the terms "carbon neutral" or any wording of equivalent meaning or scope in advertisement.
Content of the revised guidelines
On 25 May 2023, a new version of the "Practical Guide to Environmental Claims" (the "Guide") was published by the French Directorate General in charge of Competition, Consumer Affairs and Fraud Control (the "DGCCRF") and the French National Consumer Council (the "CNC"). This long-awaited Guide describes and clarifies the new legal framework applicable to greenwashing in France but also provides useful advice on its implementation.
The Guide also outlines the CNC's recommendations on the use of specific environmental claims by professionals, defining the conditions of use for the most common environmental claims, including claims that a product is "sustainable", "natural" or "recyclable" but also on the following statements: "reduced ecological footprint", "low-tech" or "upcycling".
This Guide is a not a piece of binding legislation per se. That said, it will be used by the DGCCRF, which, as part of its control mission, will rely on its content to identify and sanction breaches of the legal provisions in force, notably with regard to misleading commercial practices.
Looking forward
Environmental claims have become a growing priority and the French authorities tend to be less lenient towards companies. In 2021 and 2022, the DGCCRF conducted investigations into environmental claims used to promote non-food products and services. Of the 1,100 establishments inspected, one in four was found not to comply with French legislation, and the DGCCRF issued 141 warnings, 114 injunctions and initiated 18 proceedings (criminal or administrative).
At a time environmental, social, and governance issues are of unprecedented importance and in a context where ESG litigation related to greenwashing is increasing and can take various forms, these topics must be at the very heart of the company's concerns.
In order to protect themselves against greenwashing claims, companies should ensure that, when they use environmental claims, they comply with the most recent legislative framework, as specified by the Guide and that they have (preferably scientific) evidence in support of their assertions.
Please get in touch if you wish to discuss these developments. We stand ready to assist companies from all industry sectors and assess the risks of greenwashing and associated litigation risks in this context.
Authored by Christine Gateau, Christelle Coslin and Margaux Renard
