"Climate Neutrality": Greenwashing Before the Federal Court of Justice.
In a landmark ruling, the Federal Court of Justice addressed advertising claims regarding climate neutrality and established guiding principles. Advertising that uses an ambiguous environmental term (in this case, “climate neutral”) is generally permissible only if the advertisement itself explains the specific meaning of that term.
The Center for Combating Unfair Competition had filed a lawsuit against the fruit gum manufacturer Katjes. In a trade journal, Katjes had advertised with the statement, “Since 2021, Katjes has been producing all its products in a climate-neutral manner.” A logo displayed the term “climate-neutral” and linked to the website of a “ClimatePartner.” However, the manufacturing process for the products themselves is not CO2-neutral at Katjes. The company does, however, support climate protection projects through “ClimatePartner.” These projects are intended to offset the emissions generated during the actual production process.
The Federal Court of Justice, like the Competition Center, considers advertising claims made in this manner to be misleading.
The Federal Court of Justice states the following in this regard:
The advertisement in question is … misleading within the meaning of Section 5(1) of the Unfair Competition Act (UWG). The advertisement is ambiguous because, according to the findings of the Court of Appeals, the term “climate-neutral” can be understood by readers of the trade journal—just as it is by consumers—both in the sense of a reduction in CO2 during the production process and in the sense of a mere offsetting of CO2. The Court of Appeals failed to take into account that, in the field of environmental advertising—just as with health-related advertising—the risk of misleading consumers is particularly high, and there is an increased need to educate the relevant public about the meaning and content of the terms and symbols used. In the case of advertising that uses an ambiguous environmental term such as “climate-neutral,” it is therefore generally necessary—to avoid misleading consumers—to explain within the advertisement itself which specific meaning is intended. Explanatory notes outside the environmental advertisement are insufficient in this regard. An explanation of the term “climate-neutral” was particularly necessary here because the reduction and offsetting of CO2 emissions are not equivalent measures for achieving climate neutrality; rather, reduction takes precedence over offsetting from the perspective of climate protection. The misleading nature of the claim is also relevant from a competition law perspective, as advertising a product as supposedly climate-neutral is of significant importance to the consumer’s purchasing decision.
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