EU-wide ‘greenwashing’ complaint against airlines could launch trend

Earlier this month, consumer groups from 19 countries filed complaints with the European Commission and the network of consumer protection authorities (CPC) alleging that 17 European airlines have made misleading climate-related claims that breach EU rules on unfair commercial practices.

Fabian Klein of Pinsent Masons said the consolidated approach taken by various consumer protection agencies in different EU member states was uncommon but could become a trend, as consumer protection agencies “become more and more coordinated”. He added that the complaint could trigger more lawsuits by consumers themselves. “In Germany, for example, it has only been possible for consumers to claim damages in situations of unfair competition for a couple of years. This instrument has not yet taken off at a larger scale. Most consumers are just not aware of it.”

“A topic like greenwashing, however, has the potential to encourage more consumers to make use of this instrument, and this might kick-start consumer claims. If consumer agencies begin to make similar requests at a larger scale, this might add fuel to the fire,” Klein said.

According to the complaint, the airlines’ misleading practices include “factually incorrect” claims that paying extra credits can “offset”, “neutralise”, or “compensate” the CO₂ emissions of a flight. It also alleges that the airlines are misleading consumers when charging them more to contribute to the development of ‘sustainable aviation fuels’ (SAFs) that are not yet widely used by the market.

Klein said: “The consumer groups argue that the CO2 emissions of a flight are certain, while the effects of offsetting initiatives are highly uncertain. But this argument could be made for any offsetting programme. Therefore, the attack really aims to ban advertising with CO₂ compensation programs altogether. These consumer groups are not alone with this, either, as the Commission seems to be working towards this goal too.”

The consumer groups also allege that any implication that air travel can be “sustainable”, “responsible” or “green” is deceptive. The complaint adds: “None of the strategies deployed by the aviation sector are currently able to prevent greenhouse gas emissions. It is important to stop these claims as with air traffic set to increase, emissions will keep rising for years to come.”

Franziska Mauritz of Pinsent Masons said: “German courts currently do not prohibit per se the advertising of climate-harmful products such as fossil fuel as ‘climate neutral’ if this ‘neutrality’ is achieved by offsetting measures, provided that further information on the extent and realisation of the compensation is communicated. But there is also a clear trend to limit advertising with compensation measures, especially if companies solely rely on such without even trying to reduce their own emissions.”

“In any event, the announcement by the European consumer protection agencies shows that the claim ‘climate neutral’ is associated with considerable risks. This is especially true if the advertised climate neutrality was achieved through the purchase of CO₂ certificates and if the harm caused by the CO2 emissions of the advertised product or service is certain,” she added.

Consumer and competition law expert Angelique Bret of Pinsent Masons said: “Multinational businesses that are consumer facing should be mindful that tackling misleading ‘greenwashing’ claims is also an enforcement priority for consumer protection regulators outside the EU. The UK’s Competition and Markets Authority (CMA) – which is the country’s primary consumer law enforcer – and the UK Advertising Standards Authority are both actively investigating greenwashing claims. It has been proposed that the CMA’s consumer law enforcement powers are soon substantially strengthened, which would lead to increased non-compliance risks, including fines up to 10% of turnover