Sustainability marketing and green claims are the hot topic of marketing law today. 

While the consumers’ concern about the environment has grown, fashion brands, among other companies, are increasingly responding to this concern by emphasizing the environmental friendliness and sustainability of their products. In the absence of a universal definition of sustainability, clear legislation and case law, many brands unintentionally fall into greenwashing.

Fashion companies are increasingly marketing their products and processes using terms such as sustainable, environmentally friendly, green, ecologically safe, and responsible. Packaging and products are more and more recyclable, biodegradable, and made from renewable materials. 

Moreover, environmental claims can be more than just verbal expressions; a symbol or other graphic presentation referring to an environmental feature of a product or package could also be considered an environmental claim. All in all, sustainability marketing and environmental claims have become an ever increasingly important part of a brand’s marketing in a very short time.

But what does it mean for a product to be sustainable? In the light of current existing legislation and practise, it is practically impossible to answer this question. A great example of this is the ‘100% sustainable clothing line’ launched by a Finnish clothing brand Makia in 2020. The line didn’t include a single piece of clothing, and the webstore and the brand’s brick-and-mortal stores were empty. The company wanted to make a point of it being impossible to make completely sustainable clothing.

Marketing should not abuse consumers’ concern for the environment or seek to exploit consumers’ lack of environmental knowledge

Sustainability and environmental claims are generally regarded as factual claims in marketing, meaning that such claims must be provable and backed up by research and other credible (verified by third parties, if necessary) data before presenting them. Thus, such claims should not be used without sound evidence of the claimed sustainability. In general, environmental claims should always be honest, truthful, relevant, up-to-date, and specific and the accompanying text explaining them must be clear, relevant, and easy to understand. 

The claims should also consider the entire lifecycle of the product, and overly vague or general expressions should be avoided. Furthermore, the overall impression created by marketing should not be misleading, and marketing should not abuse consumers’ concern for the environment or seek to exploit consumers’ lack of environmental knowledge.

Despite the general framework, there is a great need to regulate environmental claims on a more detailed level. Many cases are legally open to interpretation, as neither national legislation nor case law provides for direct rules as to how, for example, goal-oriented and future-looking expressions concerning sustainability in the future are to be interpreted.

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A forward-looking goal with respect to reaching a certain level of sustainability is, in practice, impossible to prove beforehand, due to which the International Chamber of Commerce (ICC) has articulated that aspirational claims require that a company can prove their capacity and methodological approach to achieve the commitment or goal.

The European Union will shortly release a new legislative proposal on substantiating environmental claims. The new proposal is a part of the EU’s new circular economy action plan (CEAP), being in the core of the European Green Deal. The new legislative proposal deals with generic claims and aims to cut misleading practises by, for example, defining how specific environmental claims, such as “xx per cent less Co2 emissions” should be communicated.

Pursuant to the soon-to-be published legislative initiative, companies would be required to substantiate environmental claims about their products with a standard methodology, the EU Product and Organisation Environmental Footprint (PEF and PEO) methods, to assess their impact on the environment.

A forward-looking goal with respect to reaching a certain level of sustainability is, in practice, impossible to prove beforehand

Currently, guidelines for the use of environmental claims in marketing are actively being sought after internationally. For example, H&M has been sued for “false” and “misleading” sustainability marketing in the US, while the UK Competition and Markets Authority (CMA) has investigated Asos and other fashion brands over sustainability claims of their products. The Finnish authorities have also been extremely active in monitoring sustainability and environmental claims recently, striving to acquire authority and case praxis to lean upon in the future.

While the authorities focus on monitoring work, fashion brands have also woken up to the challenges caused by the sustainability marketing and strive for self-regulation. A great example is Kering, the owner of prestige houses such as Saint Laurent and Gucci, being the first big name in fashion to adopt sustainability-focused internal guidance to avoid claims of greenwashing. Kering pioneers and advises its brands to avoid broad and generic sustainability-centric statements, such as “green,” and “eco-friendly”. Proactive in-house initiatives like this are essential in the fashion industry, as companies should be pioneers in their own marketing.

There is no reason to be afraid of sustainability marketing if it is not too vague and it is based on solid facts.

Attorney Hilma-Karoliina Markkanen practises law at Castrén & Snellman Attorneys Ltd. and has many years of experience in intellectual property, marketing law, and dispute resolution. She is also an author of the Finland chapter of the Fashion Law Guide published by The Global Legal Post.