Publication
21 March 2023

Boosting the fight against greenwashing in France

In the recent years, French rulemakers, regulators and the judicial system have contributed to strengthen the fight against greenwashing.

 

Since 1 January 2023 in France, advertising that a product or service is “carbon neutral” becomes subject to the presentation of an assessment of greenhouse gas emissions over the entire life cycle of the product or service. This is a result of the coming into force of French law n°2021-1104 of 22 August 2021, known as the “climate and resilience” law.

Pursuant to other provisions against greenwashing included in this law, the French government created an online platform listing the companies subject to environmental display obligations. Such platform also mentions companies which voluntary subscribed to a “climate contract for commercial communications and ecological transition”. Such contracts aim at reducing marketing communications relating to products or services that have a negative impact on environment. The French Audiovisual and Digital Communication Regulatory Authority (ARCOM) is in charge of promoting these contracts and the Government will submit a report assessing this system’s efficiency by mid-2023.

French regulators are also active against greenwashing. For example, the French Financial Markets Authority (AMF) and the Prudential and Resolution Supervisory Authority (ACPR), the two French National Competent Authorities for banking and insurance and capital markets respectively, publish yearly joint reports on the commitments of French financial institutions to combating climate change and achieving carbon neutrality. The third report was published on 25 October 2022 and underlines for instance that several financial institutions have involved internal control departments in the governance of environmental commitments.

Moreover, in 2021, greenwashing has been expressly included within the definition of misleading marketing practices (pratiques commerciales trompeuses), since Article L. 121-2 of the French consumer code provides that false or misleading presentation of goods or services as to their substantial qualities, compositions, properties and the results expected from their use, in particular their environment impact, are prohibited. In addition, the “climate and resilience” law also increased the penalties incurred for such misleading practices to up to 2 years of imprisonment and a fine of 300.000 euros, or 1.5 million euros for legal entities, as well as 10% of the average annual turnover or to 50% of the expenses incurred in carrying the misleading practice and 80% thereof where the misleading practices are based on environmental claims.

Finally, the French judicial system is also involved in the fight against greenwashing. Indeed, several complaints were filed, by various NGOs in 2021 and 2022, against TotalEnergies, on the grounds of environmental-related misleading practices, greenwashing in the context of a project in Uganda and on other practices leading to an ecocide. In this context, TotalEnergies was accused by, among others, Greenpeace France, of minimizing information on its carbon emissions by more than four times what was calculated by this NGO, which also reported these facts to the AMF. However, TotalEnergies publicly challenged the methodology used by the NGO in such calculation.

Finally, at the end of 2022, on the eve of Climate Finance Day, several associations including Oxfam France announced that they expect the French bank BNP Paribas to respond to their allegations of failure to respect its duty of care regarding to climate change within three months, otherwise they will bring the matter before the courts. While the time allotted just expired, no action has been publicly taken yet on either side.

Therefore, greenwashing now constitute a material risk for French companies and companies operating in France.

 

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