Sustainability claims still legal quicksand – Green definitions difficult to substantiate – Foodlog

A sustainability claim is a claim – explicit or implicit – that a product is a sustainable choice. The interesting thing is that sustainability cannot yet be captured in a fixed definition. Sustainability is therefore a catch-all concept (with a social, economic and environmental pillar), which means that there can be many different types of sustainability claims. A product can be sustainable because less water was needed for production, because less CO2 has been used, or because the employees in the chain are better paid. The well-known FairTrade logo is an example of a sustainability logo, but also the more recently developed Eco-Score, a French food choice logo that calculates an environmental score. In 2020, the European Commission counted more than 200 claims and logos that focus on sustainability. The broad scope of these claims makes it immediately difficult to categorize them as one type of claims. We therefore see various initiatives, in the Netherlands or within the European Union, to regulate sustainability claims themselves.

Guidance
We start with the Netherlands. Although the Dutch Food and Consumer Product Safety Authority is the best-known regulator for the food industry, the Netherlands Authority for Consumers and Markets (ACM) published guidelines for the use of sustainability claims on products or services in early 2021, with various examples from the food sector.

With this, ACM tries to combat unfair commercial practices. Five rules of thumb and corresponding examples, described in this guideline, should help companies make fair claims: (1) the sustainability benefit of the product should be clear; (2) sustainability claims must be substantiated with facts and must remain current; (3) comparisons may be made as long as they are fair; (4) the company’s sustainability efforts must be stated honestly and specifically; and (5) visual claims and labels should not be confusing, but should help consumers.

It is a difficult task for companies to properly formulate and specify sustainability claims. How specific do you have to be about an advantage and how do you convey the right message to the consumer, without unconsciously falling into the ‘greenwashing’ trap?

Because sustainability and sustainable development are broad concepts, the guidance applies to the broad category of sustainability claims, including environmental claims and ethical claims. The Environmental Advertising Code of the Advertising Code Foundation, the self-regulatory agency for advertising, has a much narrower application: it only mentions advertisements that refer to environmental aspects. This code also mentions the importance of the factual correctness of claims made (Article 3). This code is currently under review and will be transformed into a broader Environmental and Sustainability Advertising Code in 2022.

Despite these rules of thumb, it is a difficult task for companies to properly formulate and specify sustainability claims. How specific do you have to be about an advantage and how do you convey the right message to the consumer, without unconsciously falling into the ‘greenwashing’ trap?

As in the Netherlands, a number of general initiatives have been set up within the European Union to contribute to fair and substantiated sustainability claims. For example, so-called commercial practices, including claims or advertising in general, should never be misleading. More specific rules for sustainability claims are further elaborated in Regulation 66/2010, in which the Eco-labels are laid down. These rules do not apply to food products, but we see Eco labels on, for example, refrigerators and other electrical equipment. The substantiation of sustainability claims is also a difficult task.

Broader definitions of sustainability cannot yet be substantiated well enough to serve as a requirement in a legal framework.

PEF and OEF

Since the beginning of 2000, European research consortia, among others, have been researching the development of so-called ‘green’ claims, claims about the environmental impact of products and organisations. The obligation to use a specific method will probably apply to substantiate those claims: the ‘product environmental footprint’ (PEF) for products, or the ‘organizational environmental footprint’ (OEF) specifically for the sustainability of organizations. These methods are based on the so-called life cycle assessment. A life cycle assessment makes it possible to analyze the different phases of the life cycle of a produced product. The recovery of materials from the environment to make a product, manufacture or processing, distribution, use and ultimately also the recycling or disposal of this product are all important. Both direct and indirect emissions are included in calculating the environmental impact of a product. With the PEF and OEF as a specific form of life cycle assessments, various pilots have been carried out in recent years to investigate whether this measuring method can provide a good basis for the environmental effects of products and organisations.

A life cycle assessment can therefore be a good basis for substantiating such green claims, which relate to environmental effects. But when it comes to a broader definition of sustainability, you may wonder how you can properly substantiate such a claim. Other types of analyzes are needed to substantiate a ‘sustainable’ effect on social conditions or on the economy. And although there are many developments in the methods for also mapping these sustainability effects, those methods do not yet appear to be good enough to serve as a requirement in a legal framework.

But, even if you are concrete and clear, if you have substantiation for a claim, the question still arises: how will the consumer perceive the claim? For example, will a consumer think that a product that has fewer negative effects on the environment automatically scores better on other aspects of sustainability? For a good understanding of the subject of ‘sustainability claims’, it is essential to start with a good definition of what sustainability is. Only then can companies express positive developments to improve sustainability aspects in honest communication to the consumer, who in turn can obtain reliable information and ultimately make a substantiated, sustainable choice.

Alie de Boer is a columnist for Foodlog. She is an assistant professor at Maastricht University and studies the interaction between nutrition and food law. Sarah Arayess has been a lawyer since 2014 and has had her own law practice Say legal studio since 2019. She specializes in intellectual property law, advertising law and health, beauty & food law.

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Sustainability claims still legal quicksand – Green definitions difficult to substantiate – Foodlog

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