This forum was written by Avv. Felix Hofer.

1. The European Approach

1.1. Up till now the Europe Union did not issue a set of harmonizing principles and rules meant to specifically govern ‘environmental/green marketing’.

The main reason for such approach was not disinterest from the EU’s institutional bodies towards the issue, but probably the conviction of being the traditional regulations on commercial communication perfectly suitable to cover this specific area in a sufficient and proper way.

In fact, these provisions had already established a number of basic principles requiring all commercial communication to:

  • not be misleading to the targeted public2,
  • be “readily recognizable as such and be distinguishable from editorial content” (and all surreptitious promotional messages to be explicitly banned)3,
  • not encourage behaviour grossly prejudicial to the protection of the environment4,
  • not to result in a misleading commercial practice5, a result that would occur any time:
    • «it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements..: (a)..the nature of the product, (b) its…main characteristics…such as its availability, benefits, risks, execution, composition, accessories, .. method and date of manufacture or provision, delivery, fitness for purpose, usage, .. or
      the results to be expected from its use»6,
    • «it omits material information that the average consumer needs, according to the context»7, where «information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material»8.

Click here to read more.