Communication on the environmental qualities of products: do’s and don’ts | Dentons

Consumers have become much more aware of the environmental impact of the goods and services offered to them. In response, all sectors are increasingly incorporating environment-related claims into their communications. “Environmentally friendly” and “more sustainable product” and other such terms are legion.

However, to avoid being accused of greenwashing—misleading consumers with claims that a product or service is more “green” than it actually is—those claims must be justified. The law has been strengthened in this respect, and the directorate of France’s Ministry of Economy in charge of controlling compliance with competition and consumer rules (DGCCRF) is monitoring and investigating.

But it’s not just misleading communication that companies must watch out for. There are new obligations regarding the environmental qualities of products that must be observed. Not only are certain environmental claims more closely regulated, but companies are now or will soon be obliged to communicate information about the environmental qualities of their products. Below is an update on the status of such obligations already in force or on the near horizon.

Recent reinforcement of the framework for environmental claims

Since 2015, a transparency obligation was already imposed on professionals making environmental claims about their products. Since then, the legislator has recently strengthened the framework for communications that highlight the environmental qualities of products and/or services or present the professional as committed to sustainability and respectful of the environment.

Carbon neutrality claims

Since August 22, 2021, Articles L.229-68 and L.229-69 of the French Environmental Code prohibit the use in an advertisement of any formula claiming carbon neutrality (or equivalent) of a product or service without making available the elements allowing to attest it.

Offenders (natural persons) are liable to a fine of €20,000 while legal entities can be fined up to €100,000.

However, the terms of application of these Articles had to be clarified by decrees. These decrees were published on April 13, 2022 and came into force on January 1, 2023.

Since that date, insufficiently justified carbon neutrality claims are therefore subject to the above-mentioned sanctions.

New obligations on companies to communicate regarding the environmental qualities of their waste-generating products

Not only are environmental claims regulated by law, but some companies must or will soon have to communicate information on the environmental qualities of their waste-generating products.

Disclosure requirements effective from January 1, 2023

First, since January 1, 2023 and under the terms of Article L.541-9-1 of the French Environmental Code, producers and importers that place on the national market at least 25,000 units of certain waste-generating products and declare an annual turnover for them of more than €50 million must provide consumers with information about the environmental characteristics and qualities of those products.

The sales and unit thresholds are degressive for 2024 and 2025.

The products concerned are, among others, the following new products:

1. Electronic and electrical equipment;
2. Household packaging;
3. Paper prints;
4. Batteries and accumulators;
5. Chemicals and their contents;
6. The elements of furnishing and textile decoration;
7. Textile products for clothing, footwear and household linen, excluding leather goods;
8. Sporting and leisure goods;
9. DIY and garden items;
10. Passenger cars, vans and other motor vehicles with two, three or four wheels;
11. Building products or materials;
12. Toys;
13. Other products incorporating hazardous substances.

Even though these obligations are already in force, only a few companies have put in place the required communication. Companies in breach are exposed to a fine of €15,000, while fines for individuals are €3,000.

Any company subject to the application of these rules must also comply with them in respect of any voluntary information affixed to products that involves to these same environmental characteristics.

Public authorities also encourage companies not subject to the abovementioned guidelines to consider the mandatory provisions as guidelines for voluntary disclosures of information. They further remind them that they should comply with the rules on misleading commercial practices.

Information requirements that are to come into effect in the future

Second, in accordance with Articles L.541-9-11, L.541-9-12 and following of the French Environmental Code, professionals placing certain products, services and/or categories of products/services listed by decree on the market must inform the consumer about the environmental and/or social impact of these products/services. Any failure to comply with this requirement may result in a fine of €3,000 for an individual and €15,000 for a legal entity.

This system was first tested on a voluntary basis. The results of this test application should make it possible to determine the sectors, products and services to be targeted as a priority for obligatory deployment (the textile sector is of primary concern, but also the food, furniture, electronic products and hospitality sectors). The decree defining the scope of application of these articles has not yet been adopted but will be once the experiments on textile products in particular, which are still ongoing in 2023, have been completed.

For other categories of goods and services not covered by the forthcoming decree, voluntary displays of environmental information will have to comply with the requirements set out in the decree.

The prohibition and repression of misleading environmental claims

As a reminder, a misleading commercial practice within the meaning of Article L121-2 of the French Consumer Code occurs when false or misleading claims are made about the essential characteristics of the good or service. The legislator has broadened the scope of this offence by specifying that the notion of “essential characteristics of the product or service” includes its environmental impact and that the scope of the advertiser’s commitments in environmental matters is also concerned.

The dissemination of misleading commercial communications is punishable by two years’ imprisonment and a fine of up to €300,000, which may be increased to 10 percent of the average annual turnover calculated on the last three known turnovers at the time of the events, or to 50 percent of the expenses incurred in carrying out the practice. This amount is increased to 80 percent when the practice consists of misleading environmental claims.

Consequently, each professional wishing to promote the environmental qualities of its products and/or services must in all circumstances ensure that it can objectively justify each of the environmental claims it wishes to make in order to communicate on its products. The DGCCRF ensures this and includes the verification of environmental claims in the investigations it regularly conducts.

Finally, it should be noted that a draft revision of Directives 2011/83/EC on consumer rights and 2005/29/EC on unfair commercial practices aimed at regulating environmental claims at the European level is currently being examined.