Advertising Agencies in 2026: Liability for Greenwashing Copy of Clients

Who is liable if the agency writes greenwashing copy, the client approves it and publishes it – and a warning notice is issued? The answer is: both. But the defendant is always the client (advertiser). The agency can subsequently seek recourse from the client.

Legal situation: Section 5 of the Unfair Competition Act (UWG) states that anyone who “performs a commercial act which is capable of inducing a consumer to take a commercial decision” is liable. This is primarily the advertiser (client). However, the agency can be jointly liable under Section 8(2) UWG if it is a “co-perpetrator” or “instigator” – in the case of intentionally incorrect advice.

Secure the arrangement contractually: 1. Compliance clause in the contract for services – “The contractor advises appropriately to the order, taking into account the EmpCo requirements applicable at the time of creation.” 2. Client’s duty to cooperate – The client must provide concrete evidence/proof, which the agency checks for plausibility, not truth. 3. Approval process – Written approval before publication is mandatory. 4. Limitation of liability – Maximum: contract volume, not the amount in dispute. 5. Compliance tool clause – “Agency uses Empcora for pre-check, final compliance responsibility lies with the client.”

What the agency should do: Pre-check all marketing texts with an EmpCo tool BEFORE submitting them to the client. Link every claim with a source (certificate number, LCA study, standard reference). Compliance briefing for every new client (1-hour initial consultation).

What advertising agencies should NOT promise: “We make you EmpCo-compliant” (too general, problematic in court in the event of a dispute). “Guaranteed protection against warning notices” (does not exist). “We assume the liability” (should be contractually limited).