Green slogans, the clampdown on companies starts in September

The countdown has begun. From 27 September next, companies will have to apply the EU directive against greenwashing (2024/825). Italia started the transposition process last November with a draft legislative decree that extended the list of prohibited commercial practices, updating the Consumer Code. After passing through Parliament, the text is now being published in the Official Gazette.

While the Green Claims Directive, a lex specialis that strengthens the ban on green claims that are unproven, has been stalled since last July in Brussels, the battle against greenwashing thus takes a significant step forward. "Directive 2024/825, which is in the process of being transposed," emphasises Natalia Bagnato, partner and head of the ESG department of the international law firm Ontier, "is the fundamental pillar of the fight against greenwashing and is not under discussion. According to the new rules, companies will no longer be able to state generically that a product is environmentally friendly or nature-friendly. From now on, these slogans will be classified as generic environmental claims and therefore prohibited unless they are supported by verifiable and comparable scientific evidence. Instead, a specific claim such as 'This product is made from recycled material' may be made, but if the recycling only concerns the box or packaging it will still be an unfair and misleading practice for the consumer.

"The directive," explains Bagnato, "aims to transform sustainability from a simple marketing tool to a tangible reality, enabling consumers to make informed purchasing decisions and contributing to more sustainable consumption patterns. Companies, he points out, "will no longer be able to limit themselves to boasting ecological virtues of the brand or individual goods, but will have to demonstrate them with data in hand. This should certainly provide consumers with more reliable and comparable information. The aim is to incentivise real investment in the ecological transition instead of misleading advertising'.

The new rules also prohibit the display of private sustainability labels that are not based on certification systems assessed and verified by competent and independent third parties, and based on 'international, EU or national standards and procedures'. This means, adds Bagnato, 'that a company can no longer invent an internal green logo to promote its products: it will have to ensure that the label meets minimum conditions of transparency and credibility, including an objective check, carried out by a third party, of compliance with the requirements of the system'.

Failure to comply with the new provisions will be subject to supervision by the Italian Competition and Market Authority (Agcm), which will be able to apply the sanctions envisaged for unfair commercial practices, up to a maximum amount of EUR 5 million or 4% of annual turnover in the case of EU-wide infringements. "In order not to incur sanctions," Bagnato points out, "companies will have to have a clear dividing line between the transparency of green slogans and the excess of caution that could lead to greenhushing, the total silence on environmental progress for fear of being wrong. Another knot to be unravelled, the expert points out, concerns private labels created by the companies themselves or non-accredited ESG certifications. Then there is the fear on the part of some companies of an increase in costs to meet the new obligations. 'In reality,' says Bagnato, 'more than a cost, the regulation represents protection for large companies that are already truly investing in sustainability. Until now, those who invested significant resources to make their processes sustainable suffered unfair competition from those who merely used catchy slogans at no cost. The directive has the explicit aim of allowing economic operators to act on an equal footing. Green-minded SMEs in the absence of budgets for investments required to obtain the necessary certifications, on the other hand, risk being jeopardised'.