New French anti-greenwashing guidelines: "dos and don’ts" to avoid misleading green advertising

In April 2024, the French Agency for Ecological Transition, ADEME, published an updated version of its Anti-Greenwashing Guide (initially published in July 2023) to help companies and brands avoid misleading advertising in relation to the environment and sustainable development, when promoting products, services or sustainable development approaches. 

ADEME notes an increasingly strong scrutiny of greenwashing since 2020 and a growing “name and shame” trend from civil society. The pressure on companies and brands is becoming inescapable, particularly in sensitive sectors such as energy, air transport, finance, automotive or large-scale retail. 

Greenwashing represents significant risks for companies and brands, be they legal, financial, reputational or ethical. Legal actions for greenwashing have been on the rise in the past years across Europe and France is no exception. ADEME therefore acknowledges that identifying greenwashing (section 1) and defining the main steps to avoid it (section 2) is critical for companies and brands to avoid facing the risks associated with greenwashing, including litigation risk (section 3). 

How to identify greenwashing? 

Greenwashing is defined by ADEME as any message that can mislead the public about the real ecological (environmental or sustainability) quality of a product or service and more broadly about the reality of an organisation’s sustainable development approach, regardless of its means of dissemination. All forms communication are thus affected (press, TV, radio, social media, internet adverting sustainable development reports, packaging, etc.). 

According to ADEME, the three most common greenwashing practices are:

• excessive promise: the product is presented as entirely ecological when only one of its elements is, or the company’s sustainable development approach is presented as a key part of its policy when it is not the case, or the company communicates about an action that is far from its true sectoral challenges (referred to in the guide as “metagreenwashing”); 
• lack of information or substantiation: the ecological advantage of the product or the company’s approach is not (or is insufficiently) explained for one to really understand why, how and where to find more information; 
• confusing visual: the visual accompanying the message is related to ecology or sustainable development (e.g. wild nature landscape or renewable infrastructures), but has no connection to the product or the company’s approach mentioned, leading to confusion in the consumer’s mind, or the visual used suggests that the product or service (or the company’s sustainable approach) has ecological virtues that it does not or barely has.

ADEME’s guidelines also identify other greenwashing practices: 

• blatant lie: there is nothing ecological about the product or service advertised as such or the touted sustainable development approach does not exist; 
• vague words: the vocabulary used is imprecise and general (e.g., ecological, green, ethical, responsible, fair, sustainable, etc.); 
• fake label: a sign, symbol, logo, self-declaration, an ecological or sustainable development label designed without official approval or without control and certification by a competent and independent body;   
• off-topic highlight: ecology or sustainable development is mentioned, for example through an action that the company has taken elsewhere, but it has no connection with the product or service promoted in the campaign; 
• lack of evidence: green claim for which no evidence is available (or credible), from the company or online; 
• false exclusivity: the ecological benefit of the product or service is touted as exclusive when in fact all similar products or services are required by law to adopt it, or all competitors are already doing it or the actions carried out by the company are touted as exclusive and innovative when the law requires in fact all companies to undertake such actions.

ADEME also explains that certain terms, labels and expressions are defined by law, by the ISO 14020 standards (and the subsequent ones) or by guidelines, including the 2023 practical guide to environmental claims from the National Consumer Council (CNC) and the 2018 ICC advertising and marketing communications guide, and can only be used if the product or service (or the company’s sustainable approach) meets their official definition. These are the most common terms in green-related communication (recyclable, degradable, sustainable, reusable, etc.) and could amount to greenwashing if used incorrectly to make the product or service appear greener to consumers or make the company’s sustainable approach appear more responsible towards the environment or society. 

Moreover, the statement of “carbon neutrality” for a product or service (or any wording of equivalent meaning or scope) is now prohibited since January 2023, in accordance with the 2021 Climate and Resilience Law, unless the company has: 

• carried out a balance sheet, updated every year, of the GHG emissions of the product or service over its entire life cycle, integrating both direct and indirect emissions; 
• specified the approach through which the GHG emissions of the product or service are avoided, reduced and finally offset; 
• established and published the GHG emission reduction trajectory associated with the product or service with quantified objectives for 10 years; and 
• specified the nature and description of the projects used to purchase carbon credits (offsetting). 

This information must be easily accessible to the public and non-compliance with the prohibition or failure to meet the above-mentioned obligations may be fined by the administrative authorities. 

The following are also prohibited under French law: 

• any statement such as “non-toxic”, “non-harmful”, “non-polluting” or “ecological”, as well as any other indication that a substance or mixture is not dangerous; 
• any encouragement to use energy irrationally; 
• any use of the terms “biodegradable” and “environment-friendly” on a product or packaging; 
• any encouragement to degrade products in normal working order and prevent their reuse or reutilization; and 
• any use of the terms “like new” or “as new” for a refurbished product. 

Finally, Article 7 of the 2021 Climate and Resilience Law prohibits any “advertising related to the marketing or promotion of fossil fuels” (unless the fuels also contain “renewable product”). Its entry into force is pending an implementation decree, which should set the list of energies affected by the prohibition as well as the expected requirements for a renewable energy to be marketed, and is expected to be issued soon. 

How to avoid greenwashing? 

According to ADEME, the use of the ecological argument for a product or service is justified if:

• the ecological benefit of the product or service reduces its most significant impacts;
• the benefit goes beyond what the law currently, and in the near future, requires;
• the product or service has been evaluated based on serious criteria by a competent and independent body;
• actions have been taken before communicating and the benefit exists or will exist at a future but near and specific date;
• there is no public and/or scientific controversy over the ecological benefit being promoted; 
• concrete and accessible proof of the benefit being promoted is available.

Similarly, the use of the “sustainable development” argument is justified if:

• the company’s sustainable development approach is solid, spans across the company, is budgeted, is supported internally by dedicated governance and is an integral part of the company’s internal policy;
• the approach covers the three pillars of sustainable development (environment, economy, and social) or aims to do so shortly, and is based on a set of serious criteria recognized by sustainable development professionals;
• the sustainable development approach reduces the most significant impacts of the company;
• actions have been taken before communicating and the sustainable development approach already exists or has just started, is already budgeted for and validated internally;
• there is no public and/or scientific controversy over the sustainable development actions that the company wants to highlight in the communication campaign;
• concrete and accessible proof of the sustainable development approach is available. 

Accordingly, ADEME outlines concrete guidelines to avoid greenwashing when communicating on a product or service or the company’s sustainable development approach: 

• the vocabulary is clear, precise, and explicit and allows the message to be understood without ambiguity and confusion and without requiring specific knowledge;
• the clear and complete information allows the ecological benefit to be measured by the consumer, who can easily assess the environmental gain provided by the product or service (or the sustainable development approach);
• the message contains initial information and clearly directs towards a dedicated and easily accessible website or web page;
• all “serious evidence” of the announced benefit is available;
• the message is proportional to reality and the terms and images are not excessive compared to the stated benefits (not leading the consumer to believe that the product is more ecological than it really is or that it has no impact on the environment or that the company’s approach is more extensive/serious or current than it actually is or that the company now has little or no impact on the environment and society); and 
• the logos and visuals contain no ambiguity for the consumer and do not suggest that the product or service is more ecological than it really is or that the sustainable development approach is more significant than it actually is.

ADEME’s guidelines were drafted in collaboration with the French professional advertising regulatory authority (ARPP), which also published ethical recommendations for sustainable development advertising in August 2020, based on the 2018 ICC advertising and marketing communications guide. According to those recommendations targeting advertising professionals, any communication on sustainable development must: 

• promote responsible behaviour; 
• be truthful, verifiable, measurable; 
• be proportionate to the scale of the actions; 
• be justified and understandable; 
• be honest and exclusive; 
• not deceive about the labels used; 
• use clear and precise words; 
• use visual and sound components proportionate to the argument; and 
• clarify the scope of indirect mechanisms such as carbon offset. 

Litigation risk for greenwashing in France 

In France, the current legal arsenal in the fight against greenwashing is spread across numerous provisions of the Consumer Code, the Environmental Code, certain texts specific to the environment, decrees and European regulations. 

In particular, the 2021 Climate and Resilience Law included greenwashing in the Consumer Code among misleading commercial practices, on the same level as financial scams or lies about the origin of a product. Misleading commercial practices encompass false claims or presentations that could mislead consumers about the essential characteristics of goods or services and the commitments of advertisers, whether through action or omission.

Numerous proceedings have been brought on the basis of these provisions. Some significant cases are still pending judgments by French courts and could define the contours of greenwashing under French law both civil and criminal. 

While the abovementioned guidelines from ADEME and other institutions are not legally binding, they have been established by professionals in the sector and will certainly be referred to by French courts as soft law rules and recommendations to shape the scope of greenwashing under French law and define the notion of misleading commercial practices.