LESS MANICHEAN INTERPRETATION OF 'GREEN CLAIMS' BY THE SUPREME ADMINISTRATIVE COURT

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Published On: May 6, 2024

LESS MANICHEAN INTERPRETATION OF ‘GREEN CLAIMS’ BY THE SUPREME ADMINISTRATIVE COURT: AGCM FINE OF €5,000,000 CANCELLED

ABSTRACT

With its ruling of 23 April 2024, the Italian Supreme Administrative Court (“Consiglio di Stato”) annulled the decision of the Italian Competition Authority (“ICA”) no. 28060/2019 (which had been confirmed by the Lazio Regional Administrative Court), by which a fine of € 5,000,000 had been imposed on ENI S.p.A. for unfair commercial practices in relation to the 2019 “green” advertising campaign concerning “Eni Diesel +” fuel.

The Consiglio di Stato has allowed the usage, with specific communication precautions, of “green claim” also in connection with product per se polluting (such as, fuel) and ruled a more weighted interpretation of “average consumer” and of his/her (in)ability to assess the messages behind green claims.

KEYPOINTS OF THE DECISION

Taking into account the fact that the subject of the promotional campaign initially sanctioned by ICA was a fuel, i.e. a type of product that is ontologically an “enemy” of the environment, the ruling is of particular importance because, in upholding the oil company’s appeal, the Consiglio di Stato traces a very clear interpretative line (also oriented towards the forthcoming application of EU Directive 2024/825 “Empowering”) about greenwashing and environmental claims and how they can actually be used to avoid to mislead consumers by providing the necessary information that corroborates and justifies the emphasis given to the environmental impacts of a given product/business activity.

Preliminarily the Consiglio di Stato sets an important principle in terms of “green” communication, contradicting instead the restrictive interpretation of ICA in the annulled decision and stating that: “there can be no doubt, in principle, of the legitimacy of using “green” claims also in relation to products (such as in this case a diesel fuel) that are (and remain) to a certain extent polluting but which have, compared to others, a lesser impact on the environment”.

In the light of the above, the Consiglio di Stato acknowledges that the trader in the case at hand had applied all communicative shrewdness to ensure that the relevant consumers – notwithstanding the use of expressions such as ‘green/green component/renewable/helps protect the environment‘ – could make informed choices that were not misled by the claims used, i.e. that they could not really believe that the fuel in question had no environmental impact at all.

In particular, the decision expressly rules that the use of green claims is: “permitted albeit with the use of specific precautions represented, essentially, by the use of “support” claims (i.e. messages accompanying the main claim or other graphic devices capable of specifying and contextualising the information conveyed at “first contact”). In order to prevent lapsing into a generic environmental claim, these supporting claims must be particularly clear and be linked in an immediate (and not hidden or ambiguous) manner to the main claim”.

In doing so, the Consiglio di Stato took into account the fact that the product name did not contain any “green” element and that the green claims did not refer to the product as a whole, but rather to a single (and clearly identified) “green” component corresponding to “15 %” of the product[1] .

In addition, the appellant had also challenged the ICA’s assessment of the “average consumer” profile. In this respect, the Consiglio di Stato pointed out that in the case of claims addressed to a restricted set of users (in this case, users of diesel cars), the notion of average consumer must be calibrated in a restrictive sense and not instead as ICA had done by identifying it generically without further limitations.

Lastly, also from the point of view of the truthfulness/deceptiveness of the messages divulged, the Consiglio di Stato provides interesting rulings as to how advertising messages (not only those characterized by green claims) must be structured so as not to lose, on the one hand, their “captive” character typical of any promotional message and, on the other hand, to provide exhaustive information in limited space and thus give the right balance between main messages and additional information (e.g. footer/disclaimer). On this point the judgment reads:

“without prejudice to the truthfulness of the data presented (which is not directly called into question here), the level of detail that may be demanded in their indication must necessarily be reconciled with the characteristics of conciseness and immediacy proper to any advertising message.
Providing a large amount of additional information for specification and differentiation, in addition to compromising the communicative effectiveness of the message, could even lead to consumer confusion.
the use of expressions such as ‘up to’ or ‘on average’, which are indeed common in advertising practice […] not only do they not convey an objectively false message, but they are also not misleading because they let the consumer understand that it is a boast of varying scope and they strike the right balance between the synthesis of the advertising message and its specificity”.

CONCLUSIONS

In my opinion, the Consiglio di Stato with the decision at hand provided a peculiar interpretation for the assessment of the deceptiveness of messages marked by green claims and ruled a new approach for the assessment of the profile of the “average consumer” and his nature as a “weak contracting party”.

As a matter of fact, according to settled EU and national case-law, the “average consumer”, who “is reasonably well informed and reasonably observant and circumspect, taking into account social, cultural and linguistic factors”, however, according to the last and usual ICA’s interpretation, the “average” level is closer to that of a consumer who is neither attentive nor circumspect, even “credulous” and with almost zero immune defenses against potentially misleading messages.

Instead, the Council of State’s ruling gives us back an “enhanced” figure of the average consumer whose level of attention is almost equal to his awareness of environmental issues: it follows that if the consumer is increasingly observant to the aspects of environmental protection, to the measures adopted by professionals to reduce/limit the environmental impacts of their products/materials used for their packaging/manufacturing/entrepreneurial activities, then it is equally true that those consumers have a greater capacity to decode green claims and a greater degree of attention, enabling them to know how to assess and decode with greater awareness the real scope.

With this new awareness, it is more difficult to mislead consumers and at the same time it is sufficient to provide them with concise ‘secondary messages’ accompanying the main claim to prevent them from becoming confused.

It is not excluded and indeed, in my opinion, it is to be hoped that this new approach in the assessment of the figure of the “average consumer” (whose profile can no longer be separated from the ever-increasing habit of decoding very concise messages disseminated via the Internet, such as banners and short stories) will be extended to the assessment of the potential deceptiveness of promotional messages other than ‘environmental’ ones and relating to topics on which consumers are increasingly paying attention and interest (e.g. nutritional claims).

1] The specific claim was: ‘15 % of Eni Diesel+ is renewable, so it helps protect the environment’ importing a ‘significant reduction in emissions‘. It was also pointed out that ‘although in the background of the Eni Diesel+ claim there are symbols that recall green (a sun and other) there is, from a graphic point of view there is, from a graphical point of view, a clear detachment from the frame (of a different colour) bearing the claim ‘green 15 %’ and that ‘this graphical device appears sufficient to ensure that the attribute “green” refers only to a component of the product and not to the product as a whole, a fortiori if one considers that the image is accompanied by supporting claims in verbal form specifying that the product “contributes to […] reduce gaseous emissions by up to 40 %’ and that there is a ‘renewable component produced by hydrogenation of vegetable oils‘.