Definition and legal classification of greenwashing
Greenwashing refers to the deliberate dissemination of misleading information or the pretence of environmental friendliness by companies, products, or services. The aim is to enhance the ecological image in the eyes of consumers, the public, business partners, or authorities, even though the respective environmental claims cannot be sufficiently substantiated by actual environmentally friendly measures or products. Greenwashing thus constitutes a form of deception that is legally relevant and regulated by various standards.
Historical development and societal significance
Greenwashing has been used as a term since the 1980s, but it has become increasingly important with the global move toward sustainable and environmentally responsible business practices. Companies are more frequently using environmental claims in their marketing, such as terms like “climate neutral,” “environmentally friendly,” “CO₂-reduced,” or seals, which sometimes lack objectively verifiable standards. As a result, the risk of deception and misleading consumers and market participants has risen significantly.
Greenwashing in German and European law
Prohibition of misleading information in competition law
The central legal instrument for combating greenwashing is Section 5 of the German Act Against Unfair Competition (UWG). According to this provision, a commercial act is unfair if it provides untrue or misleading information about essential characteristics of goods or services. This explicitly includes environmental characteristics. Directive 2005/29/EC on Unfair Commercial Practices (UCP Directive) of the European Union harmonizes this provision across Europe.
Examples of misleading environmental claims
Advertising statements such as “100% environmentally friendly” are inadmissible if they cannot be objectively substantiated or proven. The same applies to advertising with unspecified environmental terms without sound information or explanation.
Environmental information under product safety and labeling law
Environmental advertising claims may also fall under product safety law and related labeling obligations, for example, through requirements in the Packaging Act, the Ecodesign Directive, the REACH Regulation, or the Energy Consumption Labeling Regulation. Here, there are often specific information obligations, whose violation may result in both public law and private law consequences.
Claims under competition and civil law
Claims for removal and injunction
Competitors, environmental associations, and consumer protection organizations can take action against greenwashing under Sections 8 et seq. UWG, demanding an injunction or removal. These claims always apply when there is a risk of misleading market participants.
Claims for damages
In addition to claims for injunctive relief, there may, under certain conditions, be a right to damages if a company or consumer has suffered proven harm as a result of greenwashing.
Administrative sanctions
Greenwashing can also constitute a regulatory offense and be punished with fines, for example, if regulations regarding product safety, packaging, or food law are violated. Sanctions are determined according to the specific provisions of the relevant special laws.
Greenwashing in the context of international regulation
European initiatives against greenwashing
In response to increased cases of greenwashing, the European Commission has introduced initiatives such as the “Green Claims Code” and the “EU Taxonomy Regulation,” which impose stricter requirements for the transparency and verifiability of environmental claims. In the future, binding verification and justification requirements for environmental statements are to be introduced across Europe.
International standards and guidelines
Organizations such as the International Organization for Standardization (ISO) have developed standards such as ISO 14021 (environmental claims and self-declarations), which define minimum requirements for credible environmental advertising and labeling.
Forms and typical manifestations of greenwashing
Use of imprecise terms and symbols
Particularly problematic is advertising with general, non-measurable environmental terms (“green,” “sustainable,” “environmentally compatible”) if these are not further specified or lack scientific standardization.
Unsubstantiated or inaccurate claims
Statements that relate only to individual components of a product, while obscuring this fact, or advertising promises referring to measures already required by law, also fall under greenwashing.
Misleading seals and certificates
The use of pseudo-seals that lack a comprehensible testing process or are awarded by the company itself contribute to deception and are legally contestable.
Burden of proof, liability, and sanctions
Obligation of presentation and burden of proof
According to established case law in competition law, the advertising company must prove the accuracy of its environmental claims. If appropriate evidence is lacking, the appearance already indicates deception.
Liability risks and legal consequences
If greenwashing is established, in addition to civil claims (injunction, removal, damages), administrative measures and fines by authorities are also threatened. There is also a risk of reputational damage and reversal of legal transactions.
Case law on greenwashing
In recent years, courts have repeatedly ruled on inadmissible environmental advertising. For example, both the Regional Court and the Higher Regional Court of Frankfurt am Main confirmed in 2021 the fundamental requirements for evidence in advertising claims such as “climate neutral.” It must be stated on what basis neutrality is achieved (for example, through emission offsetting or compensation) and what standards were applied. Claims such as “environmentally friendly” are also prohibited if they refer to characteristics that are already supported by the production process or required by law.
Outlook and future developments
With ongoing legislative initiatives at both the EU and national levels, it is expected that requirements for environmental advertising and sustainability claims will continue to become more stringent. Companies are well advised to provide reliable evidence for environmental claims in the future and to communicate transparently.
Summary
Greenwashing represents a central area of concern at the intersection between environmental awareness and product advertising. Its legal treatment takes place primarily under competition, labeling, and product safety law at the national and European level. Companies must ensure maximum transparency and verifiability when advertising ecological characteristics in order to avoid legal consequences. Further legal and legislative development will be significantly influenced by current social and political trends.
Frequently asked questions
What legal consequences do companies face if greenwashing is proven?
If greenwashing is proven, companies can face a variety of legal consequences. Under German law, misleading advertising involving supposed environmentally friendly measures or products constitutes a violation of the Act Against Unfair Competition (UWG), in particular Sections 5 and 5a UWG. Competitors, consumer protection organizations, and other authorized parties are entitled to assert claims for removal and injunction. Frequently, a warning is issued demanding a cease-and-desist declaration subject to penalty, and, if necessary, subsequent litigation may follow. In addition, claims for damages may arise if affected competitors or consumers have suffered specific harm. Consequences are particularly severe under European regulations, such as the EU Regulation to Prevent Unfair Environmental Advertising. In some cases, a public retraction or counterstatement may also be ordered. If certifications or quality marks are misused, civil and criminal consequences may also follow, such as fraud or forgery.
How is greenwashing distinguished and proven under German law?
Legally relevant is the distinction as to whether an advertising statement is merely vague or is actually objectively false and thus misleading. The central criterion is always the expectation of an average consumer, as developed by the case law. If it is suggested that a product is particularly environmentally friendly, these statements must be objectively correct and capable of being proven. In case of dispute, the company bears a comprehensive burden of proof; it must substantiate its statements, if necessary, through relevant studies, certificates, or scientific evidence. This applies to both general environmental claims and specific promises such as “climate neutral” or “biodegradable.” A blanket assertion is never sufficient; the evidence must be precise and case-specific. Courts regularly use expert reports for the evaluation of evidence.
What role do quality seals and certifications play in the context of greenwashing?
Quality seals and certifications generally serve transparency and consumer protection. However, if self-issued or non-independent seals are used, there is a risk that they will mislead consumers. Legally, a seal must certify an actually verifiable environmental performance, which has been checked by a neutral, accredited body. Otherwise, violations of the UWG may occur, in particular Section 3 (“Unfair commercial practices”) and Section 5(1) UWG. Abusive use of environmental seals may lead not only to injunctive and damage claims, but also to the criminal offenses of forgery or fraud under the Criminal Code (StGB) if a false impression is intentionally created and financial loss is caused.
How is the burden of proof regulated in greenwashing proceedings?
Usually, the advertising company bears the burden of proof for the accuracy of the environmental promises conveyed by advertising. This follows from what is known as prima facie evidence in competition law: if a company makes certain statements, it must, upon request or in case of dispute, prove that these statements are true (Section 5 UWG in conjunction with Section 12(2) UWG). The plaintiff (usually a competitor or consumer organization) only needs to credibly demonstrate that the statement may be misleading; the main burden of proof then rests with the company. Exceptions only apply if the plaintiff specifically proves that a statement is definitively false.
Are there special legal regulations against greenwashing at the European level?
At the EU level, there are increasingly specific legal frameworks to combat greenwashing. Directive 2005/29/EC on unfair commercial practices contains comprehensive regulations on misleading environmental promises (“environmental claims”). In addition, EU bodies are currently working on further tightening, such as the “Green Claims Directive,” which would require companies to substantiate their environmental information with credible, scientific evidence. The EU Taxonomy Regulation, the Corporate Sustainability Reporting Directive (CSRD), and the Sustainable Finance Disclosure Regulation (SFDR) also set requirements for transparency and verifiability of environmental information. Violations of these rules can lead to cross-border fines, sales bans, or other competition law sanctions.
What role do courts and authorities play in prosecuting greenwashing?
The supervision of greenwashing lies with both civil law authorities and specialized agencies. In Germany, it is primarily the regional courts that decide on competition law disputes in civil proceedings. Proceedings are often initiated by consumer centers, competitors, or environmental organizations as collective plaintiffs. In addition, the Federal Office of Consumer Protection and Food Safety (BVL) is involved in some cases, as well as Stiftung Warentest, which reviews products for their environmental claims. At the European level, the national competition authorities and the European Commission monitor compliance with relevant regulations. Sanctions range from warnings to fines to the prohibition of certain advertising activities. Consumer protection organizations and NGOs are also playing an increasingly central role in the prosecution and exposure of greenwashing practices.
