It is greenbickering, or green squabbling, the new phenomenon with which companies, public opinion, administrators and especially judges and courts will have to become familiar. “That is,” explained Rita Santaniello, a lawyer with the multinational firm Rödl & Partner, in the conference organized by Economy magazine on the topic of greenwashing, “that practice whereby a company can take action against a competitor for unfair competition where it believes it improperly uses the leverage of corporate sustainability to improve its perception toward the market and consumers and thus to sell more“.
There are increasing and uncontrolled cases of so-called greenwashing, or that deceptive communication focused on respect for the environment that is only a facade, making a product or the brand itself appear ‘greener’ than it actually is – as many as 60 percent of companies are reported to have fallen at least once into invalid or misleading green-footprint communications (Nielsen data) – “this is because ecological awareness, especially in Western countries, has developed to the point where it determines consumers’ purchasing behavior or even increases the value of the brand or company, as concluded by so many studies,” the lawyer explains.
A survey conducted by the European Commission, national consumer protection authorities together with other international authorities, under the coordination of Ipcen (Consumer Protection and Enforcement Network) showed that in 42% of the cases the authorities considered green communications to be misleading and untrue, and thus engaged in unfair trade practices. In more than 50 percent of cases, companies failed to give consumers sufficient information to evaluate what was communicated regarding eco-sustainability; in 37 percent, the claim contained generic wording, such as ‘environmentally friendly,’ or ‘eco,’ and in 59 percent of cases, no evidence was made explicit to support what was claimed. Overall.
As a result of this a few days ago, the European Parliament – with 544 votes in favor, 18 against, and 17 abstentions-approved its negotiating position on the proposed directive on empowering consumers for the green transition and against greenwashing. The draft legislation envisages banning the use of generic green claims such as ‘zero-impact,’ natural, biodegradable, nature-friendly, and environmentally friendly unless duly substantiated, including them, along with others, in a list of commercial practices to be considered unfair and therefore illegal in any case.
“That is,” Rita Santaniello explains, “I, a company, can sue for unfair competition against one or more of my competitors who use unsubstantiated green brands, slogans or wording to sell more, thus taking away market from others, or to ‘green’ their image, thus unfairly gaining a competitive advantage over others”. In fact, according to recent GfK (Growh for Knowledge) research in Italy, 30 percent of consumers say they avoid products with plastic packaging, while 36 percent have stopped buying certain products with negative environmental impacts.
“And my feeling is that,” reflects attorney Rödl, “once the legislative stakes are defined, which in any case will leave room for broad exceptions, concrete enforceability (markets are now global, but legal systems are not) and interpretability, companies will not hesitate to fight on this front. But perhaps this, net of the increased workload of the Courts, could also be a good thing because the various rulings and experiences will facilitate more timely regulation in this area. Although,” concludes lawyer Santaniello, “it will take quite some time“.
