Navigating Green Claims in Europe and the USA

This is a topline summary of the content of our Coolfood community webinar Navigating Green Claims in Europe and the USA that we held on 27 April 2023.

Contributors

• Edwina Hughes, Head of Coolfood, World Resources Institute
• Anne Marie Taylor, Director, DWF
• Susan Onel, Partner, Kleinfeld Kaplan & Becker
• Denise Phelps, Senior Marketing Manager, Coolfood, World Resources Institute

Overview

The context within which companies and NGOs can make sustainability claims is changing and Coolfood community members are keen to understand more about what those changes imply for communication on sustainable food.

When Making a Green Claim in the EU Today:

Currently, there is no harmonized law in the EU or UK dealing specifically with green claims. Making a green claim in the EU today, we suggest you:

• Be accurate & truthful
• Be clear, unambiguous and specific
• Claims must not omit or hide important relevant information
• Comparisons must be fair and meaningful
• Claims must consider the full life cycle of the product or service
• Claims must be substantiated

What’s Changing in the EU:

In 2023 the EU sought to address the need for more clarity and harmonization by publishing a new EU Green Claims Directive. The Directive brings a lot of change, and it flags five key issues that those who are communicating green credentials will want to be aware of:

1. Definition – There is a new harmonized legal definition of environmental claim
2. Substantiation –the Directive creates minimum criteria and requires businesses to carry out an assessment of claims
3. Obligations to publish substantiation and periodically review – there is a new obligation to publish information about the claim
4.  Verification – the green claim needs pre-approval before it can be used. Verification must be by an accredited third-party conformity assessment body
5. Penalties – will include:
   • Fines of a maximum of 4% of the trader’s annual turnover;
   • Confiscation of revenues;
   • Temporary exclusion for a maximum of 12 months from public procurement processes and from access to public funding, including tendering procedures, grants, and concessions.

When Making a Green Claim in the U.S. Today:

We suggest you:

1. Review FTC’s Green Guides
   • Not binding law
   • Provides guidance on how consumers are likely to interpret particular Green Claims and how marketers can substantiate the claims
2. Consider state/district laws
   • California and Washington DC include statutory definitions for biodegradable, compostable, and recyclable which could influence what claims could be made there or how to phrase a desired Green Claim
3. Consider legal challenges because they help establish the contours of what constitutes sufficient substantiation
   • FTC challenges
   • NAD competitor challenges
   • Consumer lawsuits under state unfair trade practices statutes, mini FTC acts, and state environmental/consumer protection laws

What’s Changing in the U.S.:

In the US, the Federal Trade Commission (FTC) periodically issues Green Guides, these provide guidance on reasonable consumers’ interpretation of specific environmental terms such as compostable, degradable, recyclable, and provide advice on how to substantiate the use of such terms.  The last Green Guides were issued in 2012, the FTC is in the process of updating its Green Guides; over 60,000 comments were submitted and the finalized Guide is due out in 2023.

How did the Coolfood team consider these developments when rebranding Coolfood?

When rebranding the Coolfood Meals badge we considered the context in the EU, UK and the USA and came to the following set of decisions regarding how our Coolfood meals accreditation would look and include:

1. The accreditation now describes meals as ‘low carbon’ rather than ‘climate friendly’
2. The accreditation links directly to further info including scientific methodology
3. The association with WRI is explicitly cited within the accreditation