Introduction

Currently, the proposed Green Claims Directive is under discussion in the European Parliament as part of the ordinary legislative procedure. Trilogue negotiations between the Parliament, the Council, and the European Commission are ongoing, with the aim of reaching a final agreement later in 2025. 

While there is broad consensus on the need for further regulation of green claims, the proposed directive has drawn criticism on several fronts. First, its standards for substantiating green claims (art. 3) are considered too vague, which could result in divergent interpretations among Member States. This divergence might lead to variations in compliance requirements across the EU, potentially making regulatory obligations more demanding in some jurisdictions than in others, and leaving businesses uncertain about compliance. 

The second concern is that its ex ante approach, which requires independent verification before claims are made (art. 10(3)), could create high compliance costs and administrative burdens for businesses. This, in turn, may lead to greenhushing, where companies avoid making any environmental claims to steer clear of regulatory risk. This effect could be particularly acute for small and medium-sized companies, which may lack the resources to comply with the verification obligations. While the directive includes some accommodations for smaller businesses (arts. 12 and 10(3)), it may still disproportionately affect these entities. 

Third, another concern relates to how the directive fits within the broader EU legal landscape. Experts have raised questions about whether it sufficiently aligns with existing consumer protection rules or whether it adds layers of complexity for companies already navigating compliance obligations.

To take a closer look at the proposal for the Green Claims Directive, we have interviewed prof. Evelyne Terryn (KU Leuven). She is a member of the Consumer ID Advisory Board and a (co-)author of several papers about greenwashing, including the paper “Sustainable Consumption and Consumer Protection Legislation. She is also one of the editors of the edited volume “Greenwashing: Opportunities and Challenges of the New EU Rules”, which will be published in 2025.

Interview:

Some critics argue that the Directive’s standards are too vague and could lead to differences between member states. Do you agree with this critique, and what alternatives would be available? 

Evelyne Terryn: Yes, I do agree with this critique. The Directive’s scope of application is extremely broad, it covers all environmental claims in widely different sectors. Drafting general standards that all these claims need to comply with necessarily entails the use of broad and, at times, vague concepts. What is a ‘significant’ harm, and what is a ‘significant benefit from a lifecycle perspective’? Different third-party verifiers can interpret such concepts differently. As to alternatives, it is in my opinion preferable to focus on the most problematic claims and to regulate those more specifically and, in addition, to focus on the most problematic sectors and even to go so far as to consider a ban on advertising for the most polluting products. This, to me, is more proportionate than imposing an ex ante control on all environmental claims. It is worth mentioning in this regard that the ban on fossil fuel advertising by the city of The Hague was recently found legal by the district court of The Hague.

One of the Directive’s distinctive features is its ex ante approach to verifying green claims. What are the advantages and potential drawbacks of this model, especially compared to existing enforcement mechanisms?

Evelyne Terryn: The advantage is that all claims would be verified and that the costs of verification would be privatized. This, however, also comes with major disadvantages as it adds an important, complex, and costly layer of administration and bureaucracy. The quality of the third-party verification is also not per se guaranteed; it can differ in different member states, and ensuring a level playing field would indeed demand supervision of the verifiers, and this is, in my opinion, not sufficiently guaranteed by the Directive. 

The Directive has raised concerns among small and medium-sized enterprises (SMEs) regarding the administrative burden it may impose. How do you assess its potential impact on SMEs, and do you believe the current text strikes the right balance?

Evelyne Terryn: I share the concerns. The costs of the information requirements and prior verification of the draft Directive before an environmental claim can be made may discourage companies, especially SMEs, who are often innovative in environmental matters, from advertising new solutions and, in the worst case, from investing in new environmental solutions. I would be in favour of excluding SMEs from the scope of application. They still need to comply with the UCPD.

How do you see the Green Claims Directive interacting with the current EU legal framework on unfair commercial practices, including the Empowering Consumers Directive?

Evelyne Terryn: The UCPD, as amended by the Empowering Consumers Directive, does actually provide a legal framework that allows for tackling greenwashing cases. It is not perfect as a legal framework, as open norms do come with uncertainties and divergences in application. But it is a flexible legal framework that has been used successfully to tackle greenwashing. The additions to the blacklist by the Empowering Consumer Directive do have added value and make it easier to tackle specific practices. This framework will continue to operate as a safety net. The Green Claims Directive comes on top of this framework, and certification will only give companies the certainty that they comply with the Green Claims Directive; compliance with UCPD is not guaranteed. The added value of prior certification for companies, therefore, remains limited.

Finally, what is your overall assessment of the Directive? Do you believe it has the potential to really improve business practices and consumer trust?

Evelyne Terryn: I am afraid that the disadvantages of the Directive outweigh its potential advantages. Its aim to combat greenwashing is certainly laudable, but its disadvantages - including the costs, additional administrative burden, ambiguity, uncertainty in application, enforcement, and supervision of third-party verifiers (and thus potential lack of a level playing field), the infringement on the freedom of expression and freedom to conduct a business, the potential disincentive for green initiatives - outweigh its potential benefits in reducing misleading environmental claims and enhancing consumer trust.