October 27, 2024
DUH Wave of Claims: Greenwashing Risks for Companies
Since 2024, the Deutsche Umwelthilfe (DUH, German Environmental Aid) has been intensifying its legal action against companies that it believes make misleading environmental claims. This development presents significant challenges for marketing managers and requires careful review of your own communication. The EmpCo Directive (EU 2024/825) will further reinforce this trend from 27 September 2026.
The DUH as a Qualified Association
The DUH is a qualified consumer association within the meaning of § 8b UWG (German Act Against Unfair Competition) and is entitled to bring legal action. This means it can assert injunctive relief to prevent unfair competitive practices. The focus is particularly on statements that are considered inadmissible under the EmpCo Directive, such as generic claims about sustainability or the use of “climate neutral” in connection with carbon offsetting.
Risk Areas and Current Priorities
The DUH is currently focusing on industries where greenwashing is particularly prevalent. These include:
* **Energy suppliers:** Claims about “climate neutral gas” or “green electricity” are being critically examined, especially if the compensation is not transparent and verifiable. * **Food industry:** “Sustainable” products without concrete evidence or the use of misleading terms such as “environmentally friendly” are at risk. * **Textile industry:** “Sustainable fashion” without certification according to GOTS, OEKO-TEX 100 or similar standards is increasingly being challenged under Section 5 UWG and the EmpCo Directive (EU 2024/825). * **Automotive industry:** Claims about “climate neutral mobility” are particularly critical, as they often rely on compensation and therefore fall under the per-se prohibition according to Annex I No. 4a UCPD as amended by EmpCo.
The Legal Situation and the Role of the EmpCo Directive
The EmpCo Directive significantly tightens the requirements for environmental statements. In particular, Annex I No. 2 UCPD as amended by EmpCo prohibits generic claims that cannot be substantiated with concrete evidence. Annex I No. 4a UCPD as amended by EmpCo establishes a clear per-se rule for “climate neutral” with offsetting. Companies must therefore ensure that their statements are based on recognised certificates (EU-Bio, Demeter, FSC, etc.) or validated by other reliable methods. The BGH (German Federal Court of Justice) judgment in the Katjes case (I ZR 98/23) of 27 June 2024 underscores the need for transparent disclosure when using compensation measures.
Practical Recommendations for Marketing Managers
1. **Stocktaking:** Review all marketing materials (website, brochures, advertisements) for potentially misleading environmental claims. 2. **Gather evidence:** Ensure that all statements are supported by recognised certificates or other reliable evidence. 3. **Adjust wording:** Avoid vague and generic terms such as “sustainable” or “environmentally friendly”. Instead, use concrete and measurable information. 4. **Legal advice:** Have your marketing communication reviewed by an experienced lawyer to minimise legal risks. 5. **Monitoring:** Monitor the activities of the DUH and other environmental organisations to be able to react promptly to potential lawsuits.
Consequences of Violations
Violations of the UWG (German Act Against Unfair Competition) and the EmpCo Directive may result not only in injunctive relief but also in fines. The amount of the fines can be substantial and depends on the severity of the violation and the size of the company. In addition, there may be reputational damage that can have long-term effects on the business.
The DUH is likely to continue to take action against greenwashing in the future. Companies that adapt their marketing communication now and focus on transparent and verifiable statements can significantly reduce the risk of lawsuits and fines.