Green is not always green: Swiss guidelines on “green marketing”

• Compliance/Data Protection/ESG
• SME

Due to the increase in advertising with environmental arguments, the Swiss Commission for Fairness (SLK) has published guidelines on “Commercial communication with environmental reference / with environmental arguments”. The guidelines specify when green marketing fulfils the requirement of truth and clarity within the meaning of Swiss unfair competition law.

The following article provides an overview of these guidelines and shows how companies can avoid falling into the trap of communicative “greenwashing”.

Guidelines on “Commercial communication with environmental reference / with environmental arguments”

The Swiss Commission for Fairness (SLK) has noticed that companies are increasingly using so-called “green claims” (e.g. “green”, “ecologically harmless”, “environmentally friendly”, “sustainable”, “CO2-friendly”, “environmentally friendly”, “CO2-neutral”, “climate-neutral”, “nature-friendly”, “emission-free”, “ozone-friendly”, “climate-positive”, etc.) in advertising for their goods and services in order to attract consumers. In this context, there has also been an increasing number of complaints about misleading claims. As a result, the SLK published the aforementioned guidelines in December 2023. Even if the guidelines are considered soft law, they are an important code of practice for fair commercial communication with environmental arguments.

The SKL emphasises that all environmental and climate-related statements in commercial communication (including in advertising and on product labels) must be true, clear and up to date. The SLK guidelines contain detailed requirements for the “clarity requirement” and “truthfulness requirement” if companies wish to advertise with environmental claims. Statements or visual representations must not mislead consumers in any way in respect of the environmental aspects or benefits of products (e.g. goods, works or services) or activities of the advertiser in favour of the environment. Advertisers must be able to prove the accuracy of their claims.

According to the SLK, statements such as “green”, “ecologically harmless”, “environmentally friendly”, “sustainable”, “CO2-friendly” and all other statements that imply that a product or activity has no – or only a positive – CO2 impact on the environment can only be made without restriction if they meet high standards of proof. Furthermore, with reference to the Code of the International Chamber of Commerce (ICC Code), the SLK states that as long as no definitive, generally recognised methods for measuring sustainability or ensuring its realisation are available, it cannot be claimed that the sustainability goals have been achieved[1].

In addition, SLK also commented on the average consumer’s current understanding of a number of commonly used green claims, e.g.:

• The terms “sustainable” and “environmentally friendly” refer to environmental/climate-related measures that go well beyond legal or industry requirements;
• the statements “CO2-neutral”, “CO2-friendly”, “CO2-free” refer to measures to completely avoid or completely offset the greenhouse gas carbon dioxide;
• the statement “CO2-positive” refers to measures that lead to overcompensation (i.e. compensate for more CO2 than they emit);
• the terms “greenhouse gas neutral” and “without greenhouse gases” refer to measures for the complete avoidance or complete compensation of all greenhouse gases (i.e. in addition to CO2, also nitrogen oxides, methane, nitrous oxide and the so-called F-gases), etc.

Enforcement practice

The SLK concluded that the following green claims are misleading:

“Baby food jars are climate positive”, “Heating oil X is climate neutral”, FIFA’s announcement about the climate neutrality of the 2022 FIFA World Cup in Qatar, etc.

When examining the cases in connection with green claims, the SLK referred to the Federal Act against Unfair Competition (UCA) and the Code of Advertising and Marketing Communication of the International Chamber of Commerce (ICC Code). According to the ICC, advertising companies are obliged to prove that their green claims are accurate and not misleading. Strict standards apply here. It is important to clearly state whether a green claim refers to the company as a whole or to a specific product or service.

For example, it is not enough to simply present a carbon footprint or a certificate as proof of carbon neutrality to advertise “climate neutrality”. A company must present a plausible and comprehensible calculation of all climate-damaging effects according to generally recognised methods and be able to provide evidence of corresponding compensation measures. For example, the company must fully document the calculation of all CO2 emissions caused by its activities and prove that these CO2 emissions have been fully offset.

Our recommendations for action

To avoid misleading environmental and climate-related statements or a breach of unfair competition regulations, we advise to

• Check advertising materials regarding green claims for clarity and truthfulness;
• Provide strong evidence for green claims that comply with applicable laws, guidelines issued by relevant government authorities and relevant self-regulatory organisations.
• Establish and implement internal review and approval processes for communications and marketing materials;
• Organise training for the company’s employees who work in areas such as communications, marketing or external reporting and familiarise these employees with legal requirements and best practices in this area.

AMATIN AG Rechtsanwälte / Rechtsberatung │ Anwälte / Counselors │ Conseiller Juridiques / Avocats

[1] recital 4 of the SLK-guidelines with reference to art. D1, section 4 of the ICC-Code.