Administrative and judicial decisions against greenwashing should systematically include sanctions in addition to ordering cessations of misleading green claims. Sanctions must be effective and dissuasive, and for that purpose they must not only deprive the trader of any benefit derived from using the misleading green claim in question, but also be proportionate to the size and turnover of the company. With respect to access to evidence, denying access to information for strategic or industrial reasons should not be allowed in matters relating to corporate social responsibility. In addition, access to information could be improved by restricting the exceptions pertaining to industrial confidentiality only to instances where it is deemed necessary, and creating a process for interim relief if access to environmental information is refused.

The rules on burden of proof should alleviate excessive hardships for consumers while ensuring that false environmental claims cannot be made easily.

Greater cohesion and standardisation in the supervisory system at both the national and the EU levels would be beneficial for upholding consumer rights.

Rules regarding administrative enforcement of consumer rights should not afford excessive discretion to administrative bodies regarding examination of a complaint, or the possibility to appeal a decision, which could result in depriving consumers of effective access to a remedy.

Moreover, to make the enforcement of consumer protection laws more effective, the competent authorities need to be adequately resourced, and collaboration with civil society and government administration needs to be promoted.

The EU should consider improving consistency and complementarity between its various relevant legislative initiatives such as the corporate sustainability reporting directive (CSRD), the proposal for a corporate sustainability due diligence directive (CSDDD) and various reporting obligations.

Some experts also suggest that the creation of an independent environmental authority and courts specialised in environmental matters could help uphold such cohesion and ensure that the requisite expertise could be relied on.

The French Senate’s report recommends strengthening the powers of the Directorate-General for Competition Policy, Consumer Affairs and Fraud Control and promoting synergy between various agencies and administrations. The Court of Auditors recommends strengthening the governance of the consumer movement and better collaboration between accredited associations and administrations.

The Dutch Minister’s letter to parliament on building blocks of corporate social responsibility legislation recommends establishing an EU supervisory body to make it easier for consumers to report harmful business behaviour, in particular regarding cross-border corporations. In the context of greenwashing, this would also benefit the environment.

Strengthening the legal capacity of consumer and environmental organisations to hold governments and business to account can improve the protection of consumer rights and environmental interests. Moreover, it would be important to expand the eligibility of organisations to take legal action, including actions in the general interest (actio popularis), and broaden the scope of consumer group actions. Such organisations should also be able to intervene in judicial proceedings in support of consumers (e.g. as amici curiae) in individual lawsuits.

While the primary legal responsibility remains with relevant state authorities as duty bearers under EU human rights law, improving the management of litigation risk and supporting civil society to address the growing number of environmental claims by businesses is essential in light of the proliferation of environmental claims by businesses and limited resources of NGOs to exercise their watchdog role in this respect.

The public authorities' lack of awareness of the significance of greenwashing in the context of environmental protection and of applicable legislation is often a greater obstacle than substantive or procedural gaps in the regulatory or enforcement system. It is important to provide training for administrative authorities, judges and lawyers on environmental aspects of consumer laws, and in particular regarding interpretation of misleading practices in the context of greenwashing.

Governments should fulfil their obligation to promote human rights and be proactive in educating consumers about their rights regarding misleading environmental advertising in order to empower them to take action. This includes campaigns to raise awareness of greenwashing and providing information on how to report it. Complaints and decisions of administrative bodies and courts should be published on the websites of relevant institutions and in professional journals, and also on company websites.

Without prejudice to the obligations of the Member States in this regard, and subject to the availability of adequate resources, national human rights institutions can play a significant role not only by engaging more actively in the development of relevant legal and policy measures, but also by developing their expertise on both consumer rights and the impact of climate change and the green transition [44] See also FRA, Strong and Effective National Human Rights Institutions – challenges, promising practices and opportunities, Publications Office of the European Union, Luxembourg, 2020.
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Businesses need guidance and support to comply with national and international legal norms. It is important to provide guidance for businesses to comply with environmental obligations and encourage sustainable behaviour in line with the increase in reporting requirements.

With the increasing number of reporting requirements at both the national and the EU levels, coherence, complementarity and easily understandable guidance are essential to ensure that companies focus on avoiding or reducing negative impacts rather than only reporting them. It is important to include small and medium-sized companies in these efforts, and fair commercial practices must be considered from a competition law perspective.

Consumer protection laws are still often seen as effective only when a product presents a physical danger to the consumer. Legislation, however, should also consider any negative impact of a product on the environment, which also affects consumers. The relevant legislation should consider that environmental protection is a fundamental rights issue and connected to the broader protection of consumer rights.

Sustainability criteria, including environmental impact through the whole life cycle of a product, should be defined and explicitly included in warranty law. Warranty periods should be extended for durable products and the burden of proof should be on manufacturers, who should also be held accountable for ensuring durable product designs. Moreover, penalties for planned obsolescence should be strengthened. Planned obsolescence is defined as a practice in which products are intentionally designed to fail after a certain age or amount of use, which can lead to increased waste and overconsumption.

To incentivise a circular economy, which involves sharing, leasing, reusing, repairing, refurbishing and recycling products, the Commission presented the circular economy action plan in March 2020 as one of the main building blocks of the European Green Deal, Europe’s new agenda for sustainable growth. The circular economy action plan aims to promote more sustainable product design, reduce waste and empower consumers. The Commission’s proposals on ecodesign and the consumer empowerment directive are crucial for promoting ecological change in the EU.

Transparent sustainability labelling is essential to help consumers make informed choices. Labelling should be regulated by independent authorities to ensure the reliability, trustworthiness and comprehensiveness of the information provided. Quality labels should employ consistent criteria and be independently monitored, for example through a pre-approval system, such as the one proposed by the European Consumer Organisation, for green claims and labels, which would both help prevent greenwashing and promote those businesses with better environmental and substantiality performance.

A human rights-based approach to environmental protection and corporate climate accountability is rooted in the concept of human rights due diligence defined in the UNGPs and reflected in the proposal for a corporate sustainability due diligence directive (CSDDD).

In this context, laws pertaining to due diligence, such as the proposed CSDDD, could play an important role in protecting the rights of consumers and increasing the proportion of sustainable production in the economy.

According to the UNGPs, the due diligence process should include assessing actual and potential human rights impacts, integrating and acting on the findings, tracking responses and communicating how impacts are addressed. It is imperative to ensure that due diligence regulations are comprehensible and practical: a balance must be struck between robust and effective regulation and minimal administrative encumbrance.

Based on FRA’s work in the area of business and human rights and the views of experts consulted for this report, the following aspects should be considered in the implementation phase of the proposed CSDDD:

• coverage of all companies operating in the EU internal market;
• binding regulations for corporate responsibility along supply chains at the national, EU and international levels;
• provisions ensuring effective access to justice;
• the obligation to comply with all internationally recognised human and labour rights and climate and environmental standards, as established by relevant international institutions, such as the Council of Europe, the UN, the EU (including the European Environment Agency) and the International Labour Organization;
• establishment of civil liability (and effective remedies) for companies for due diligence violations;
• establishment of independent monitoring institutions and effective sanctions and penalties for violations;
• public accessibility of relevant companies’ reports.