Human rights and the environment are intrinsically linked: a clean, healthy andsustainable environment is essential to the enjoyment of human rights. International human rights law imposes on governments the obligation to protect rights affected by climate change, such as the rights to life, health, water and a healthy environment. These legal obligations should inform and underpin the commitment towards a green transition.
This research explores the intersection of consumer and environmental protection in national laws, with a particular focus on access to reliable information about the sustainability of products and services and addressing greenwashing.
The purpose of the report is to inform EU policymaking, support enforcement efforts and highlight emerging risks related to greenwashing. It provides insights, examples and guidance to support the effective regulation of misleading environmental claims and to protect consumer rights. The findings of the report are relevant for EU and national policymakers, and also enforcement bodies responsible for implementing relevant legislation.
In particular, this report examines the relevant legal framework in 10 EU Member States (Austria, Belgium, Bulgaria, Denmark, France, Germany, Italy, the Netherlands Poland and Portugal) to determine whether they adequately protect consumers’ access to reliable information about the environmental impact of products and services and hold companies liable for misleading green claims / greenwashing. The report provides positive examples and examples of shortcomings or inconsistencies in the implementation of existing EU legislation, identifies areas in need of improvement and offers solutions for closing existing gaps.
In July 2022, the United Nations General Assembly adopted a resolution recognising the right to a clean, healthy and sustainable environment as a human right and noting that the right to a clean, healthy and sustainable environment is related to other rights and existing international law. The resolution calls on ‘[s]tates, international organisations, business enterprises and other relevant stakeholders to adopt policies, to enhance international cooperation, strengthen capacity-building and continue to share good practices in order to scale up efforts to ensure a clean, healthy and sustainable environment for all’.
To promote an understanding of the relationship between the environment and the protection of human rights, the Council of Europe published its Manual on Human Rights and the Environment, highlighting principles emerging from the case-law of the European Court of Human Rights and the conclusions and decisions of the European Committee of Social Rights.
The pressing need to tackle climate change has led to the introduction of several new legislative measures by the EU. A number of these initiatives are focused on consumer rights, with growing recognition of the role of consumers themselves in changing their consumption habits and making more sustainable choices. But demanding sustainable and ethical behaviour from businesses cannot be left solely to consumers or civil society.
According to the Office of the United Nations High Commissioner for Human Rights(OHCHR)’s Applying a human rights-based approach to climate change negotiations, policies and measures, a human rights-based approach can be used to guide policies and measures on climate change mitigation and adaptation:
A human rights-based approach is a conceptual framework that is normatively based on international human rights standards and operationally directed to promoting and protecting human rights. It seeks to analyze obligations, inequalities and vulnerabilities and to redress discriminatory practices and unjust distributions of power that impede progress and undercut human rights.
Taking a human rights approach to environmental protection and corporate climate accountability means focusing on the obligations of governments and the responsibilities of large companies, rather than on choices of individual consumers. It also implies empowering the consumer as a rights holder. This approach aims to prevent the worst impacts of climate change on a large scale and prioritises the protection of rights holders and affected communities.
Tackling misleading environmental claims – ‘greenwashing’ – aligns with Article 38 of the Charter of Fundamental Rights of the European Union (the Charter), which provides that the EU shall ensure a high level of consumer protection, as it aims to ensure that environmental claims are reliable, comparable and verifiable. It also aligns with the goal of maintaining a high level of environmental protection in accordance with Article 37 of the Charter. Furthermore, combating greenwashing will help advance fair competition among businesses in promoting their environmental friendliness, which ultimately protects their freedom to conduct business as guaranteed be Article 16 of the Charter.
A human rights-based approach to corporate climate accountability is rooted in the concept of human rights due diligence defined in the UN Guiding Principles on Business and Human Rights (UNGPs), which affirm that business enterprises have a responsibility to respect human rights, should be accountable for their impacts on the climate and should participate responsibly in climate change mitigation and adaptation efforts with full respect for human rights.
OHCHR highlights the importance of incorporating human rights principles into corporate climate accountability efforts in its Frequently Asked Questions on Human Rights and Climate Change : The corporate responsibility to respect human rights requires that business enterprises take a human rights-based approach to climate action, drawing upon the human rights principles of participation, non-discrimination, transparency, accountability and empowerment.
In this context, the EU put forward a proposal for a directive on corporate sustainability due diligence (CSDDD) to advance sustainable and responsible corporate conduct, and to ensure that human rights and environmental concerns are embedded in companies’ operations and governance. The core elements of this duty include identifying, terminating, preventing, mitigating and accounting for negative human rights and environmental impacts in the company’s own operations, in those of their subsidiaries and in their value chains. That includes accountability not only for their actions, but also for ensuring accurate, transparent and ethical communication practices.
Communication plays an essential role in prompting a collective response to climate change, as stressed by the Intergovernmental Panel on Climate Change and others (e.g. Depoux et al.). The primary objective of communication is to raise awareness, foster agency and participation among individuals and ultimately empower rights holders to make proactive and informed decisions. Such objective of communication is connected to the state obligation to promote human rights, since, without such awareness, rights holders cannot claim their rights. To achieve this, therefore, it is imperative to safeguard individuals’ right to access to the information needed (Article 11 of the Charter).
Greenwashing refers to the practice of conveying false or misleading information about the environmental friendliness of a company’s products. It involves using deceptive advertising or marketing tactics to convince the public that the company’s products, goals and policies are environmentally sound. It can be found in advertising, sponsorship and public messaging in the media, including on social media. Examples of greenwashing can range from simply changing the name or label of a product to make it seem more natural, even if it contains harmful chemicals, to launching elaborate and expensive campaigns that portray highly polluting companies as committed to being eco-friendly [1] For a literature review aiming to identify the main concepts and typologies of greenwashing, see Freitas Netto, S. V., Sobral, M. F. F., Ribeiro, A. R. B. and da Luz Soares, G. R., ‘Concepts and forms of greenwashing: a systematic review’, Environmental Sciences Europe, Vol. 32, No 19, 2020. .
The phenomenon of greenwashing or misleading environmental communication emerges as a significant impediment to achieving decarbonisation goals (a strategic reduction of human-induced CO2 emissions to combat the severe impacts of climate change) and undermines consumers’ autonomy and their empowerment as rights holders. Greenwashing diminishes consumers’ ability to make informed and meaningful choices that advance their own economic and sustainability goals. Finally, such misinformation not only undermines efforts to protect the environment, but also undermines the efforts of companies genuinely committed to sustainability [2] See, for example, Bernini, F. and La Rosa, F., ‘Research in the greenwashing field: concepts, theories, and potential impacts on economic and social value’, Journal of Management and Governance, 2023. .
Consumer protection laws can help ensure that businesses are held accountable for misleading consumers with false or exaggerated environmental claims. Legislative frameworks play a substantial role in addressing the issue, with the EU increasingly linking consumer and environmental protection.
In this context, it is also important to ensure effective access to justice in order to enforce the relevant laws (Article 47 of the Charter). As demonstrated by the European Union Agency for Fundamental Rights (FRA)’s prior research on business and human rights, the presence of procedural obstacles frequently impedes individuals from asserting their rights against corporations, thereby rendering their rights ineffectual.
Human rights-based approaches to environmental protection and environmental justice aim to increase access to justice not only for individual victims but also for communities. This includes enabling and empowering non-governmental organisations (NGOs) to represent communities and protect the environment in the public interest. Allowing NGOs to challenge greenwashing without having to prove individual harm is therefore consistent with international human rights law and acknowledges the right of communities to actively participate in shaping policies related to climate change, as they are the ones most affected.
FRA activity - Ongoing FRA project: ensuring the right to environmental protection
Launched in 2023, this project seeks to identify the most immediate and significant impacts on social and fundamental rights of the EU’s green transition and relevant implementing legislation in light of climate change and the UN 2030 Agenda for Sustainable Development promise to leave no one behind.
In 2024, FRA will map the key legal and policy provisions of the Green Deal that ensure a just transition and that link to the European Pillar of Social Rights. It will identify fundamental rights risks for different groups in vulnerable living conditions and localities. FRA will cooperate and consult closely with relevant stakeholders, including the European Commission, the European Environment Agency, the Council of Europe as well as other international organisations and civil society to identify the most urgent research questions and areas of concern.
Based on the initial research, the project will develop in-depth case studies in selected EU Member States to assess the implementation of relevant EU regulations, directives and policies accompanying the Green Deal in national law and policies from a fundamental rights perspective.
The Charter guarantees a high level of consumer protection and the principle of environmental protection. Article 38 of the Charter states that ‘Union policies shall ensure a high level of consumer protection.’ Article 37 of the Charter states that ‘A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.’
Legal corner - Article 37 of the Charter
Article 37 CFR has been the subject of extensive study analysing its legal significance, enforcement and potential influence on the relationship between environmental protection and fundamental rights within EU law.
While Article 37 does not establish an individually justiciable right to environmental protection, it plays a role in influencing the interpretation and application of EU law and the Charter provisions guaranteeing individual rights. While Article 37 has rarely been invoked by the Court of Justice of the European Union, some have argued that it could contribute to the integration of environmental rights and duties, potentially providing the foundation for an emerging fundamental right to a sustainable environment. In the meantime, the application and interpretation of Article 37 continue to evolve within the context of EU law and environmental principles.
Sources:
Morgera, E. and Marin-Duran, G., ‘Commentary to Article 37 – environmental protection’, in Peers, S., Hervey, T., Kenner, J. and Ward, A. (eds), Commentary on the EU Charter of Fundamental Rights, 2nd edition, Bloomsbury Publishing, London, 2021.
Scotford, E., ‘Environmental rights and principles: investigating Article 37 of the EU Charter of Fundamental Rights’, in Bogojevic, S. and Rayfuse, R. (eds), Environmental Rights in Europe and Beyond, Bloomsbury Publishing, London, 2018.
The Treaty on the Functioning of the European Union (TFEU) includes provisions relating to consumer protection, such as Article 169, which allows the EU to adopt measures to protect the health, safety and economic interests of consumers.
The TFEU also enables the EU to adopt measures to protect and improve the environment, combat climate change, promote sustainable development and protect fundamental rights. Article 191 outlines the objectives of EU policy on the environment, which include preserving, protecting and improving the quality of the environment, protecting human health and promoting measures at the international level to deal with regional or worldwide environmental problems.
Furthermore, Article 11 TFEU requires the EU to integrate environmental protection requirements into its policies and activities and to promote measures at the international level to deal with regional or worldwide environmental problems.
Also relevant – although it is soft law – is the European Pillar of Social Rights, which includes principles such as the right to fair working conditions, the right to social protection and inclusion and the right to consumer protection.
Misinformation about the environmental impact of products has a potentially significant impact on human health, environmental protection and consumer rights. It can have an impact on corporate sustainability by leading to a loss of trust among consumers and stakeholders, which can ultimately harm a company’s reputation and cause financial losses. It can also make it difficult for consumers to identify and support sustainable businesses, which can ultimately harm the environment. Furthermore, it undermines consumers’ ability to make choices that advance their economic and sustainability goals, and potentially disempowers them as rights holders.
A total of 94 % of Europeans say that protecting the environment is important to them personally, and 68 % agree that their consumption habits adversely affect the environment in Europe and globally (Special Eurobarometer 501).
In the European Green Deal, the Commission made a commitment to ensure that consumers can make more informed choices and can actively participate in the ecological transition. In particular, the European Green Deal aims to address false environmental claims by providing consumers with trustworthy, comparable and verifiable information, enabling them to make sustainable decisions and thereby reducing the risk of greenwashing. The priority of addressing greenwashing was further emphasised in both the new circular economy action plan and the new consumer agenda. The recently implemented Green Deal industrial plan emphasises the importance of allowing consumers to make decisions based on transparent and reliable information about the sustainability, durability and carbon footprint of products. It also highlights that market transparency is a tool that promotes the adoption of technologically and environmentally superior net-zero products.
The coordinated screening of websites for ‘greenwashing’ (‘sweep’) that was carried out by the Commission and Consumer Protection Cooperation Network authorities in 2020 to detect misleading environmental claims confirmed the prevalence of vague, exaggerated, false or deceptive green claims. It confirmed the need to strengthen the rules to facilitate enforcement in this area. A 2020 Commission study on environmental claims in the EU assessed 150 environmental claims and found that a sizeable share (53.3 %) provide vague, misleading or unfounded information on products’ environmental characteristics across the EU and in a wide range of product groups (both in advertising and on the product).
To address this problem, the EU has proposed various legal initiatives aiming to ensure that environmental labels and claims are credible and trustworthy, allowing consumers to make informed purchasing decisions and boosting the competitiveness of businesses that strive to increase the environmental sustainability of their products and activities.
Empowering consumers to make informed decisions is a fundamental part of the European Green Deal. In 2020, the adoption of the new consumer agenda to strengthen consumer resilience for sustainable recovery stressed the need to empower consumers ‘to make informed choices and play an active role in the green and digital transition’.
In 2022, the Commission put forth a proposal for a directive on empoweringconsumers for the green transitionthat aims to bolster consumer rights in order to facilitate informed choices and actively contribute to the shift towards a climate-neutral society. The proposal amends the unfair commercial practices directive (UCPD) and the consumer rights directive to empower consumers for the green transition through better protection against unfair commercial practices and better information. The proposal includes additional specific rules on environmental claims and the prohibition of misleading advertising. It includes a tool to prevent greenwashing and related unfair commercial practices, and new regulations on the evidence that businesses must provide to back up their environmental claims. Along with promoting more sustainable consumption and enabling consumers to make informed decisions, it also aims to stop unfair business practices that might have gone unnoticed in the past. The proposal was adopted in February 2024.
To further combat greenwashing and misleading advertisements, on 22 March 2023 the Commission adopted a proposal for a directive on substantiation and communication of explicit environmental claims, known as the green claims directive. It aims to create the first detailed set of EU rules for substantiating voluntary green claims and regulate the use of environmental claims in marketing communications in the EU. The directive includes rules for companies making environmental claims, including an obligation to be supported by scientific evidence, such as a ‘product environmental footprint’ framework that tracks environmental impacts across 16 categories, including air pollution and climate change. The proposed directive would apply to almost all businesses operating in the EU, with the exception of microenterprises (which have fewer than 10 employees and an annual turnover of less than EUR 2 million), and would apply to all products and services sold in the EU.
This proposal complements the above proposal on empowering consumers for the green transition by providing more specific rules on environmental claims, in addition to a general prohibition of misleading advertising.
According to the explanatory memorandum to the green claims directive, the proposal is designed to act as a safety net for all sectors in which environmental claims or labels are unregulated at the EU level. While the revised UCPD covers all voluntary business-to-consumer commercial practices before, during and after a commercial transaction in relation to a product, the scope of this proposal covers the substantiation and communication of voluntary environmental claims. In the same way, the abovementioned proposal on empowering consumers for the green transition deals with sustainability labels that cover environmental or social aspects or both. This green claims directive would be limited to environmental labels only.
Both proposals define greenwashing or an ‘environmental claim’ as any message or representation that is not mandatory under EU law or national law, including text, pictorial, graphic or symbolic representation, in any form, including labels, brand names, company names or product names, in the context of a commercial communication, which states or implies that a product or trader has a positive impact or no impact on the environment or is less damaging to the environment than other products or traders, respectively, or has improved their impact over time.
The consumer protection cooperation regulation lays down a cooperation framework to allow national authorities in the European Economic Area to jointly address breaches of consumer rules when the trader and the consumer are established in different countries. While green statements made by a company could influence consumers across borders, evidence of the implementation of this cooperation framework did not emerge in this research.
Finally, the representative actions directive (RAD), adopted in 2020, aims to ensure protection of consumers’ collective interests. The directive sets minimum requirements with respect to collective actions on a wide range of topics. It is principle-based, with a fair margin of discretion regarding implementation left to the Member States. The RAD should have been transposed by all EU Member States by December 2022, and entered into force in June 2023. By January 2023, however, the Commission announced that only three Member States had properly transposed the RAD into their national legislation on time.
The EU’s commitment to the sustainable development goals (SDGs) aligns with its commitments to sustainability, including to environmental and consumer protection. The SDGs include SDG 12, which aims to ensure sustainable consumption and production patterns. The first EU voluntary review on the implementation of the 2030 agenda confirmed how the Commission’s policy priorities such as the European Green Deal contribute to the global and domestic transformations required to achieve the SDGs.
The Aarhus Convention (1998) is a treaty adopted under the aegis of the United Nations Economic Commission for Europe. It covers access to information, public participation in decision-making and access to justice in environmental matters. It links environmental rights and human rights and acknowledges that sustainable development can be achieved only with the involvement of all stakeholders, including consumers. It also guarantees the right to receive environmental information held by public authorities, which can help consumers make informed environmental choices. In addition, the convention establishes that every person has the right to live in an environment adequate for their health and well-being, which includes protection from environmental harm caused by consumer products.
The convention provides that each state party shall develop mechanisms with a view to ensuring that sufficient product information is made available to the public in a manner that enables consumers to make informed environmental choices (see Section 1.5).
The United Nations Human Rights Council in 2011 unanimously endorsed the UN guiding principles on business and human right (UNGPs). They provide guidance for states and companies with respect to human rights. The UNGPs rest on three pillars: the state duty to protect human rights, the corporate responsibility to respect human rights and access to remedy for victims of business-related abuses. While the UNGPs do not directly refer to the environment, they imply its protection owing to the environmental dimensions of certain human rights, as noted by the United Nations Environment Programme and OHCHR.
The EU has committed itself to promoting and implementing the UNGPs in various strategies and pieces of legislation. In 2011, the EU adopted a communication on a renewed EU strategy for corporate social responsibility and has since taken stock of its efforts to implement the UNGPs such as in the 2019 Commission staff working document Corporate social responsibility, responsible business conduct, and business and human rights – Overview of progress.
The OECD guidelines for multinational enterprises on responsible business conduct are soft law that cover key areas of business responsibility, including consumer and environmental interests. In 2023, these OECD guidelines were updated to respond to urgent social, environmental and technological priorities facing societies and businesses. While they do not have the binding legal force of treaties or laws, they represent a global standard for responsible business conduct, providing a framework for multinational enterprises to operate in a socially and environmentally responsible manner, and can help to build trust and confidence among consumers, investors and other stakeholders.
The environment features prominently in the OECD guidelines, with one chapter dedicated to enterprises’ environmental performance. The guidelines recommend that multinational enterprises align with internationally agreed goals on climate change, biodiversity and pollution, and include due diligence expectations on the environment. The guidelines also emphasise the importance of sound environmental management as an important part of sustainable development, seen as both a business responsibility and a business opportunity.
The National Contact Points (NCPs) receive complaints about alleged breaches of the guidelines. An NCP does not have judicial or enforcement powers but provides a platform to mediate between parties involved. Complaints can be brought by anyone who can demonstrate a credible interest in the subject matter [3] For examples and assessment of the efficiency of NCPs, see FRA, Business and Human Rights – Access to remedy, Publications Office of the European Union, Luxembourg, 2020. .
The EU’s proposal for a directive on corporate sustainability due diligence (CSDDD) is also relevant for consumers and environmental information. The directive aims to foster sustainable and responsible corporate behaviour throughout global value chains by requiring companies to establish due diligence procedures to address adverse impacts. Due diligence entails a duty to identify, prevent, terminate, mitigate and account for adverse human rights and environmental impacts. The directive aims to assist companies in meeting the growing demand from consumers for ethical and environmentally sustainable products and help consumers to obtain information about the products they buy and the companies they support.
In January 2023, the corporate sustainability reporting directive (CSRD) came into effect, bringing about significant advancements in the regulations governing the disclosure of social and environmental information by companies. It will replace the non-financial reporting directive, which remains in force until companies are required to apply the new rules of the CSRD. It expands the scope of reporting requirements to a wider group of large companies. It also aims to ensure that investors and other stakeholders have access to the necessary information to evaluate the impact of companies on society and the environment, while also enabling investors to assess financial risks and opportunities arising from climate change and other sustainability concerns. The initial implementation of these new regulations will be required for the 2024 financial year.
This research was carried out between July and December 2022 by FRA’s multidisciplinary research network (Franet) and involved desk research and a limited number of consultations with experts conducted by Franet in 10 Member States: Austria, Belgium, Bulgaria, Denmark, France, Germany, Italy, the Netherlands, Poland and Portugal. Franet contractors conducted four to six consultations per country, in the form of structured phone or online interviews. The national experts consulted included representatives of environmental and consumer protection NGOs and governmental bodies, experts in litigation and representatives of business. Franet contractors aimed to consult at least one expert per category in each Member State. The Member States covered by the research were selected taking into account the anticipated presence of pertinent case-law, input from preliminary discussions with different stakeholders and geographical diversity. Additional consultations with civil society and relevant EU institutions, including the European Commission and the European Environment Agency, were undertaken by FRA in 2023.
The results do not purport to provide an exhaustive account of a given situation in a Member State, but should instead be read as selected insights and case studies that help to highlight common challenges encountered by consumers when seeking remedies for misleading environmental claims.
This report presents a broad overview of national legislation and examples of relevant case-law. It draws on detailed national studies on this topic, which are published on FRA’s website. As this report is published only online, hyperlinks are used instead of detailed references in footnotes where possible.
Chapter 1 outlines findings relating to national implementation by administrative and judicial bodies of the available legal tools in the context of green claims / greenwashing and access to information about the environmental impact of products. Chapter 2 analyses the procedural requirements for collective consumer claims and their relevance for enforcing consumer rights in environmental contexts. Chapter 3 provides suggestions on ways forward to improve the protection of environment-related consumer rights.
