The Consumer Ombudsman's Guidelines on use of Environmental and Ethical Claims etc. in Marketing

Date 25 feb. 2011

 

In a recently published guide, the Danish Consumer Ombudsman states his recommendations for Danish companies’ future use of environmental and ethical messages in the marketing of their products. The recommendations are directed primarily at messages regarding environment, climate and sustainability etc.

 

The new guide contains the Consumer Ombudsman’s interpretation of the applicable regulations in the Danish Marketing Practices Act in relation to environmental and ethical claims. It aims to ensure that the consumers receive relevant and credible information on the product’s influence on the environment and are protected against misleading and unethical marketing.


The legal basis

The Danish Marketing Practices Act states a general ban on deceptive advertising which prohibits traders from using wrongful information in their marketing and from omitting material information about the product if such information is suitable to influence the consumer’s behaviour in the market. In addition, all operators are generally required to exercise good marketing practice in consideration of the consumer.


Based on these general marketing principles, the Consumer Ombudsman has sought to establish more specific guidelines in relation to environmental and ethical marketing.


General conditions

The guide contains a number of general requirements for the use of environmental and ethical claims in marketing. The guide very broadly defines what is encompassed by environmental and ethical claims, and the definition thus encompasses all indications suitable to give consumers the impression that a given product is better than another similar product when it comes to environmental and ethical considerations. This includes statements such as “green”, “environmentally friendly”, “gentle” and “sustainable”.


Consumers must be able to make an informed choice between different products based on environmental and ethical considerations. To ensure this, the Consumer Ombudsman recommends that claims used by traders must be precise, accurate and relevant, enabling consumers to understand them and to not be misled. Traders should neither exaggerate their marketing claims nor emphasise messages which only have a marginal impact on the environment. Whether or not this is the case must be assessed based on the overall impression which the specific marketing measure conveys to consumers.


The Consumer Ombudsman also recommends the use of such overall assessment in relation to the general profiling and framing of the companies’ environmental or ethical reputation, e.g. in relation to a company’s visions and objectives or its cooperation with charitable organisations.


Traders must be able to document the correctness of environmental and/or ethical claims. As a supervisory authority, the Consumer Ombudsman is entitled to receive this documentation.

 

Specific requirements for environmental and ethical claims

In addition to the general requirement on verifiability, the Consumer Ombudsman set further requirements for the traders regarding their use of environmental and/or ethical claims. A distinction is made between (i) general, isolated claims, and (ii) claims with an accompanying explanation.


General, isolated environmental and/or ethical claims

While general, isolated environmental claims may be statements such as “organic”, “natural”, “non-toxic”, and “environmentally friendly”, the isolated ethical claims refer to terms such as “working conditions”, “child labour”, and “animal welfare”. In case the products concerned may be categorised as non-food products, it is the Consumer Ombudsman’s opinion that the Danish Marketing Practices Act must be limited to apply to the marketing of certain specified textiles and cosmetics only.


As a main rule, traders must be able to prove that their product has a significantly lower impact on the environment than other similar products. Also, the lifecycle of the product must have been thoroughly examined and substantiated. This must include an investigation which maps all phases in the product’s lifecycle, e.g. the mineral, manufacturing and the phase of use.


The Consumer Ombudsman assumes that it will generally be difficult for traders to use claims with environmental or ethical merits without having to explain which characteristics the specific claim relates to. Thus, there is an extended requirement of verifiability.


Environmental and/or ethical claims with an accompanying explanation

If an environmental or ethical claim is accompanied by an exlanation, further requirements must be met according to the Consumer Ombudsman.


As for environmental claims, it is required that the emphasised claim must be a significant environmental merit of the product, and the merit must not have been created through measures which harm the environment. Also, the merit may not be reduced or cancelled out by other environmentally damaging aspects of the product.


In relation to ethical claims, such must be supplemented by a sufficiently precise explanation, as well as the emphasised merits must be examined in connection with the lifecycle of the product and other similar products on the market, wherever possible.



If you have any questions or require additional information on the recommendations of the Consumer Ombudsman, please contact Jakob Bundgaard, Partner (jbu@mwblaw.dk) or Kim David Lexner, Junior Associate (kdl@mwblaw.dk).


The above does not constitute legal counselling and Moalem Weitemeyer Bendtsen does not warrant the accuracy of the information. With the above text, Moalem Weitemeyer Bendtsen has not assumed responsibility of any kind as a consequence of a reader’s use of the above as a basis of decisions or considerations.