Denmark Combats Greenwashing With New Guidelines

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The Danish authorities have followed the UK and the Netherlands by warning businesses selling into the country that they must provide clear evidence to support environmental claims.

The Danish Consumer Ombudsman has told businesses that any sustainability claims made must be based on a lifecycle analysis data. This opens up a potentially huge can of worms for apparel brands given ongoing debate around the use and application of LCAs in the fashion sector. The Danish Ombudsman states that health, social and ethical issues must be considered when making sustainability claims and – tellingly – acknowledges that it is therefore, “very difficult to call a product, etc. sustainable without being misleading.”

The new guidelines state that companies must be able to document their statements in marketing. They state: “Therefore, the Consumer Ombudsman recommends that companies be as accurate as possible when describing how a product excels. If a product does not comply with the marketing, it will be misleading marketing.” The guidelines offer a number of examples of when it may be a violation of Denmark’s Marketing Act to “write positively about a product’s environmental impact without having sufficient documentation.”

Key principles
There are a few overriding principles which the Consumer Ombudsman puts specific emphasis on in the new guidance:

  • As with other marketing statements, environmentally focused ones must be correct as well as both clearly phrased (so as to avoid consumers getting the wrong picture) and not omitting any important information.
  • When speaking about actual circumstances you must be able to evidence what you say, and your statements must be supported by independent experts.
  • You must apply the methodology of a full life-cycle analysis as support of general statements about being environmentally friendly.

The starting point for the Consumer Ombudsman is that when consumers read a general “eco-friendly” statement about a product they are poised to believe that it has no adverse effects on the environment. This, however, is rarely true. If not substantiated such statements will in consequence be misleading, and the additional flipside of the coin is that the criteria for when you have evidenced that you are indeed eco-friendly are harsh in nature.

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Not any evidence will do, as it must be in the form of a “true” cradle to grave life-cycle analysis that is backed by independent experts. It becomes a bit easier if you are allowed to use an official label for the product, as this enables you to use such terms as “less damaging to the environment”, “more eco-friendly”, etc.

Further, the Consumer Ombudsman adds the following four requirements about how you phrase the positive impact: (i) it may not be marginal in nature, (ii) it may not be created through a process that in itself damages the environment, (iii) it may not be weighed out by climate damaging features, causing for instance products from particular polluting sectors not to be allowed to be branded as eco-friendly and (iv) it cannot be a usual feature of similar products.

In this context there are a few things to note for businesses. First, you cannot promote this as a special feature if a product merely lives up to climate or environmental requirements. Secondly, statements must be updated on an on-going basis if for instance technological advances or legislation causes the statement no longer to be true and fair. Also, special regulations may apply to marketing of certain products or to specific consumer groups.

When you use the term “organic”
When using the term “organic” for clothing or cosmetics it is a requirement that at least 95% of the product content stems from certified organic production and that the remaining product content does not materially lower or neutralise the advantages of organic production.

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Statements about carbon emissions
The Consumer Ombudsman has now raised the bar for businesses that want to depict themselves as for instance “climate neutral”, “creating zero emission” or “achieving a 30% emissions reduction”. To this end, your marketing will be misleading if you say that you strive to reduce emissions, and this is not supported by (i) an actual plan for reducing emissions verified by an independent organization and (ii) green accounts detailing both current and future expected emissions.

If you say that you have reduced emissions, you must be able to provide evidence and you cannot ride on the back of historic emission reductions – numbers must be current. You can only say that you are carbon-neutral if calculations show that your emissions are zero. Use of climate compensation mechanisms must be detailed in clear and concise terms and must be verified by an independent party.

Talking about sustainability
It is easy to say that you are acting sustainably, and for that reason sustainability is one of the terms most commonly used in greenwashing exercises. Taking the point of departure in the 1987 Brundtland report “Our Common Future” , the Danish Consumer Ombudsman defines sustainability as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”.

Against that background, a number of criteria for using the term “sustainable” has now been set out, first and foremost that using this expression must be based on a life-cycle analysis showing that the business does not jeopardise coming generations’ ability to have their needs met – taking also into account health, social and ethical issues. This will obviously be a particularly strenuous task for businesses.

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 “Green” communication
Pictures speak louder than words, and the Consumer Ombudsman has also gone into the area of symbolic green communication, for instance when you use pictures, symbols, drawings, colours, etc. or otherwise green slogans, mottos, visions or similar to show that you are not a threat to the environment.

Using such imagery gives consumers the impression of dealing with a sustainable supplier, and this will be misleading unless you are able to offer evidence in support of such perception. In general terms you cannot promote yourself greener than what you are: also known as greenwashing

Risks
Since the Consumer Ombudsman deals with cases also on the basis of complaints, going forward consumer activism from impact organisations might work to drive up the number of cases where businesses are accused of and investigated for greenwashing.

The legal authority for the anti-greenwashing guidance is the Danish Marketing Practices Act, with the Consumer Ombudsman interpreting some of the general rules in said legislation in a green context. Violations of the Danish Marketing Practices Act are punishable by fines, and the Consumer Ombudsman publishes its decisions.

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