New Danish Guidelines - Use of green claims in marketing

In this newsletter advores Advokater & Rechtsanw?lte updates you on the new guidelines from the Danish Consumer Ombudsman regarding companies′ use of green claims as a part of the companies′ marketing.

In 2021, the Danish Consumer Ombudsman issued a guide for companies about eco-marketing (in Danish called Forbrugerombudsmandens kvikguide). The aim of the guide was to help private companies how to use claims such as climate-friendly, ecological, green etc., legally in relation to the companies′ eco-branding/advertising.

This guide has now been repealed and replaced by new guidelines (in Danish called Forbrugerombudsmandens anbefalinger). The primary difference between the old quick guide and the new guidelines is that the guidelines adresses new topics such as the company’s responsibility for the validity of eco-marketing practices and the importance for companies to consider the overall impression given by the eco-marketing initiative.

The company′s responsibility for the validity of eco-marketing practices

If a company chooses to market itself or its products as eco-friendly, sustainable, green etc., the company is responsible for the truthiness of the labels used. However, the company is not the only subject that can be held liable, also retailers of products marketed unlawfully can incur liability. This becomes relevant if the retailer does not check the veracity of a product’s eco-marketing, or if the information given by the producent in this regard seems insufficient or creates doubts about its accuracy.

Consequently, it is of upmost importance to back eco-marketing practices up with sufficient evidence. Companies making use of eco-marketing or retailers selling eco-marketed products without the necessary basis are at risk of making themselves guilty of unlawful marketing practices. Unlawful eco-marketing practices can result in complaints against the company and huge fines.

To clarify the difference between right and wrong practices, the guidelines include fictional and real-life examples of lawful/unlawful eco-marketing.

The overall impression created by the eco-marketing

Eco-marketing practices shall also be deemed unlawful if the overall impression created gives the consumer a misleading impression of the product or the company. Thus, it is crucial for companies to consider the effect created by an eco-marketing initiative, as both general and specific claims can be misleading for the consumers.

The new guidelines especially address the companies use of the following words: “sustainability”, “reduced CO2-emissions”, “recycled” and “re-used” in relation to advertisement.

The right/wrong use of these words is a big new focus point for the guidelines compared to the previous guide:

• Sustainability

As the term “sustainability” is difficult to grasp or decode, the Danish Consumer Ombudsman strongly advises companies to stop labelling products as “sustainable”. Although the term may still be applicable in vague phrasings such as “striving for sustainability”, the vague nature itself of these phrasings makes it advisable to avoid such phrasings all together.

The guidelines also highlight the fact that simply complying with rules about sustainability cannot be considered as a guarantee that the product or a company is to be considered as “sustainable”.

• Recycled” VS “re-used

The guidelines further stress the importance for companies to differ between “recycled”, which refers to products being produced with at least 95% of recycled material, and “re-used”, which refers to products which continuously stay in use, such as clothing garments or furniture. The distinction lies in whether the product has been constructed from material stemming from old products, or whether the product stays the same; in short, “recycled” refers to an evolution of the product material, whereas “re-used” refers to an evolution of the product use.

A consequence of the revised UCP-directive

To sum up the aim of the guidelines is to provide a contribution to the interpretation of §§ 5, 6 and 13 in the Danish Marketing Act (in Danish called Markedsf?ringsloven) as well as to prepare for the incoming changes of this Act pursuant to the adoption on February 28th, 2024, of the revised EU-directive about unfair commercial practices, also known as the UCP-directive, which will be effective from September 27th, 2026.

Further changes following from the revised UCP-directive

Besides the already mentioned changes, the revised UCP-directive entails several other amendments that must be implemented in Denmark. The changes of the UCP-directive will primarily result in new additions to the current appendix 1 to the Danish Marketing Act, which entails a of lists various commercial practices that are always considered misleading or aggressive.

The following practice will be added to the list:

• Claims about the whole product or company when the benefit only applies to parts of it: A company makes environmental claims about the whole product or business, but the benefit only applies to certain aspects.
• Benefits arising from legislation: Requirements arising from legislation cannot be presented as a specific environmental benefit.
• Generic environmental claims: Generic environmental claims are used even if no recognized environmental presentations relevant to the claim can be demonstrated.
• Sustainability label: A company use a sustainability label that is not based on a certification scheme or established by public authorities.
• Climate claims based on carbon offsetting: A company claims that a product has a neutral, reduced or even positive effect on the environment in relation to greenhouse gas emissions, based on compensation schemes for these emissions.

The revised UCP-directive thus distinctively broadens the scope of unlawful practices and ensures wider protection of the consumer against deceptive and misleading eco-marketing. It is in this context that the Danish Consumer Ombudsman had a strong incitement to clarify and update the quick guide on the use of green claims in relation to eco-marketing, which has resulted in new guidelines.?

In advores Advokater & Rechtsanw?lte we are following the process of the implementation of the new UCP-directive and will keep you up to date with any relevant new ESG legislation in our next newsletter.

If you want to be up to date with your eco-marketing, you can read the Danish guidelines in full here: Virksomheders milj?markedsf?ring Forbrugerombudsmandens anbefalinger

If you need any legal advice in relation to your marketing activities advores Advokater & Rechtsanw?lte expects will be happy to assist you.