The EU ‘Greenwashing’ Directive is due to come into force from 27 September 2026. The Directive (officially known as Directive 2024/825) seeks to robustly govern the use of common ‘environmental’ claims by businesses and endeavours to better protect EU consumers. Businesses that do not comply face fines of up to 4% of their annual turnover.
This article examines the practical implications for brand owners trading in the EU and steps that ought to be taken in preparation.
What Is Greenwashing?
‘Greenwashing’ is a term used to describe the often-questionable use of ‘green’ or ‘environmentally friendly’ claims by businesses, used as a means to artificially inflate their standing with consumers who can be deceived into believing that the business has an excellent environmental record. Common consumer-facing environmental claims include ‘green’, ‘eco-friendly’, and ‘climate positive’, which often create an impression far removed from the truth.
Empowering Consumers for the Green Transition Directive 2024/825
The Empowering Consumers for the Green Transition Directive: Directive 2024/825 (‘the Directive’) comes into effect from 27 September 2026. The Directive amends existing EU law regarding unfair business practices, particularly with respect to ‘greenwashing’, stipulating that the following will be considered misleading business practices:
- displaying a sustainability label that is not based on a certification scheme or not established by public authorities;
- an environmental claim related to future environmental performance without clear, objective, publicly available and verifiable commitments set out in a detailed and realistic implementation plan that includes measurable and time-bound targets and other relevant elements necessary to support its implementation such as allocation of resources, and that is regularly verified by an independent third-party expert, whose findings are made available to consumers;
- making a generic environmental claim for which the trader is not able to demonstrate recognised excellent environmental performance (as defined by EU law and obtained through specific official accreditation schemes) relevant to the claim;
- making an environmental claim about the entire product or the trader’s entire business when it concerns only a certain aspect of the product or a specific activity of the trader’s business;
- claiming, based on the offsetting of greenhouse gas emissions, that a product has a neutral, reduced or positive impact on the environment in terms of greenhouse gas emissions.
Whilst the Directive does allow scope for some ‘green’ claims to be made, it is clear that any such claims must be very carefully communicated and be capable of being supported by publicly available information that has been objectively verified by a recognised ecolabelling scheme. Vague claims such as ‘green’, ‘eco-friendly’, and ‘climate positive’ etc will almost certainly fall foul of the Directive without a strong body of evidence to back it up.
How Does the EU Greenwashing Directive Interact with EU Trade Mark Law?
Like UK trade mark law, EU trade mark law contains provisions policing what can and cannot be registered as a trade mark. The more commonly exercised provisions relate to descriptiveness and non-distinctiveness; nonetheless, applications can be refused on ‘public policy’ grounds if they contravene other areas of law (even if said area of law does not directly relate to trade marks).
Theoretically, an EU trade mark application (or a national trade mark filing in an EU member state) that incorporates ‘green’ terminology could be refused on the grounds that it does not comply with the Directive.
Likewise, EU trade mark registrations (and national registrations in EU member states) can be revoked if it can be shown that they are liable to mislead the public as a result of their use. Should an existing registration incorporate ‘green’ terminology or some environmental claim which cannot be supported (therefore being contrary to the Directive), it is arguable that such a registration subsequently fall into the ‘misleading’ bracket and be vulnerable to revocation.
Practical impact and solutions for brand owners trading in the EU
The Directive represents a serious clamp down by the EU with respect to ‘greenwashing’. Brand owners who trade within the EU should consider:
1. Reviewing their existing trade mark portfolio and marketing materials: do any brands or straplines incorporate generic environmental claims? If so, they should carefully consider whether they can objectively support these claims compliance with the Directive.
2. Providing evidence: where trade marks, straplines or marketing materials incorporate such terminology, details of the relevant evidence and accreditation should be provided for consumers to readily access.
3. Making changes where necessary: any trade marks or marketing materials or straplines etc that incorporate such terminology and is not in compliance with the Directive should be changed. This may mean having to update marketing materials, product labels, and file new trade mark applications where necessary.
Read the Directive - EU - 2024/825 - EN - EUR-Lex
