Consumer Information on the Environmental Impact of Food Products: Comparing France and Italy
by Marica Mileo
Last March 26, 2024 Directive 2024/825/EU, amending Directives 2005/29/EC on Unfair Commercial Practices and 2011/83/EU on Consumer Rights, «with regard to empowering consumers for the green transition by improving protection from unfair practices and information» (so-called “Greenwashing Directive”) entered into force. The act, adopted by the Parliament and the Council of the European Union, based on Article 114 TFEU, aims to safeguard consumers' freedom of choice by ensuring that the information about the environmental characteristics of products within a commercial communication is not generic or difficult to verify and compare.
The Commission's Communications, especially, «The European Green Deal», «A Farm to Fork Strategy for a fair, healthy and environmentally-friendly food system», as well as the «New Consumer Agenda» aimed at «Strengthening consumer resilience for sustainable recovery», task consumers with a central role in the green transition and in the initiatives to reduce the environmental footprint of food systems. These, indeed, are considered among the main causes of climate change and environmental degradation. Thus, properly informed and put in a position to make informed choices, consumers can contribute to developing new models, stimulating demand and, consequently, the supply of more sustainable food products (in addition to exercising their right to information).
In particular, recital (1) of Directive 825/2024 affirms that it is appropriate to introduce specific rules in the Union consumer law to tackle unfair commercial practices that deceive consumers and prevent them from making sustainable consumption choices. This, in turn, will allow the competent national authorities to effectively deal with such practices, overcoming the difficulties encountered in the application of the provisions of Directive 2005/29/EC to unfair practices to the specific environmental sector (Rubino, 2024).
Pending the adoption of the measures necessary to comply with the Directive by the Member States, it is interesting to see how consumer information on the environmental impact of food products is currently regulated in France and Italy.
On August 22, 2021, the Loi n° 2021-1104 «portant lutte contre le dérèglement climatique et renforcement de la résilience face à ses effets» was enacted in France. Also known as “Loi climat et résilience”, it consists of 305 articles and made important changes to consumer information and advertising alike.
Its Articles 2 and 12 amended the Environment Code (Code de l’environnement), making it compulsory for an indication («affichage») to be made through a mark, label or any other suitable means, aimed at providing consumers with information regarding the environmental impacts (and compliance with social criteria) of certain goods and services, as well as prohibiting in advertisements environmental claims designed to assert the neutrality of a product in terms of greenhouse gas emissions (unless an emissions balance sheet, the procedure by which emissions are avoided, reduced, and finally offset, is made readily available by the advertiser). In case of non-compliance with the «d'affichage» obligations and in using indications contrasting with the requirements established by the law, administrative sanctions are envisaged, the maximum of which may not exceed 3,000 euros for natural persons and 15,000 euros for legal persons. Similarly, with regard to environmental assertions of neutrality in terms of product emissions, the law stipulates that the Administrative Authority – under the conditions set by a Council of State’s decree – may sanction non-compliance with the prohibition, or failure to comply with the obligations stipulated, with a fine of 20,000 euros for individuals and 100,000 euros for legal entities (the latter can be brought to the total amount of the expenses allocated to the illegal operation).
As for «affichage environnemental», Article 2, II, has provided, in addition, trials, for a maximum duration of five years from the enactment of the law, at the end of which a decree will establish the list of categories of goods and services for which the indication would become mandatory. Priority was given, for obvious reasons, to the textile and food sectors. Precisely concerning the latter, the trial “launched” by the then Ministère de la transition écologique (MTE) and the Agence de la transition écologique (ADEME), the results of which fed into the government report submitted to Parliament in March 2022, ended in 2021. Further trials followed in subsequent years, aimed at fine-tuning a mechanism that, to date, however, is not operational yet.
The legislative act also amended the Consumer Code (Code de la consommation) by introducing, in point b), paragraph 2, of Art. L. 121-2°, the environmental impact («impact environnemental») among the essential characteristics of goods or services that, if subject to false statements or otherwise of such a nature as to mislead the consumer, lead to the qualification of such conduct as misleading commercial practices («trompeuses»). Furthermore, in point e), environmental matters («matière environnementale») falls within the scope of application of advertiser's commitments, on which presentations that are false or of such a nature as to mislead the consumer similarly integrate misleading commercial practices. Against such new conducts, the 50% percentage already provided for in Article L. 132-2 of the Consumer Code, as an alternative calculation hypothesis for the amount of the fine provided for in paragraph 2, has been raised to 80% of the expenses incurred in carrying out the advertising or practice constituting the crime.
In Italy, the Autorità Garante della Concorrenza e del Mercato (AGCM) has been – and continues to be – important in combating misleading environmental claims, despite the absence of ad hoc provisions.
Also recently, with the sanctioning proceeding PS12496, which ended with Provvedimento n. 31025 of January 16, 2024 (which, we anticipate, did not consider well-founded the case at stake), the commercial communication disseminated by a well-known company in the poultry sector was submitted to the Authority's scrutiny, concerning assertions used by the professional about «the environmental sustainability of its business activity and emission offsetting projects». The assertions censured were contained in sections and documents that can be consulted on the company website, while others were present in the 2021 sustainability report, also available on the website (the defendant, nonetheless, argued that these indications would not amount to advertisements, since they were not drawn up for commercial purposes and were not intended to promote any product). The proceedings – which, as anticipated, ended with a ruling that, as far as the environmental allegations were concerned, did not find the business practice deceptive – have nonetheless caused the professional to put in place a series of actions aimed at greater environmental compliance, including in the business organization. In addition to intervening several times on its website, the company pointed out that it had, in fact, adopted an «Environmental Compliance Program – Sustainability Guidelines», establishing a special corporate function – that of «Sustainability Officer» – «operating under direct reporting to the Chief Executive Officer, tasked with encouraging, taking care of and verifying the compliance of the choices and processes adopted by the company with the highest criteria of environmental sustainability (e.g., concerning the reduction of harmful emissions, offsetting of CO2 generated), as well as guaranteeing the correctness, truthfulness and possible updates of the messages in this regard disseminated by the company».
In general terms, one can argue how only the application of the rules stemming from the transposition of the “Greenwashing Directive” will make it possible to assess the enhanced effectiveness, in every respect, of the tools offered by Union law to better contrast misleading business practices in environmental matters. Similar observations can be made in respect with the proposed Directive on the Attestation and Disclosure of Explicit Environmental Claims of March 22, 2023 (so-called “Green Claims Directive”) currently pending.
Nonetheless, some considerations can certainly be put forward.
France and Italy have chosen two different approaches, concerning the environmental impact information of food products: the former endorsed take a mandatory route; the latter, on the other hand, has “left” to the sphere of voluntary communication this type of information. France, where the Nutri-score labelling system has been developed to make it easier for consumers to identify nutritional values, has decided, indeed, to develop a mechanism with a completely similar functioning (Eco-score), aiming to make it mandatory (Sous-section 1 bis, Section 2, Chapitre Ier, Titre IV, Livre V, Code de l'environnement).
Both countries “combat” the phenomenon of “Greenwashing” by qualifying statements that incorporate its prerequisites, including in environmental matters, as unfair commercial practices (in Italian law «scorrette»). Such practices, divided into misleading commercial practices and aggressive ones, are prohibited in both countries by the respective legislations harmonized by EU law, specifically Directive 2005/29/EC, which has been recast into the respective Consumer Codes. Misleading commercial practices, which can be carried out either by action or omission, as is well known, are divided into conducts to be assessed case by case (Articles 6 and 7) and those always and in any case misleading, contained in Annex I (the equally well-known “black list”). As for deceptive actions, set forth in Article 6, pursuant to paragraph 1, it is stipulated that a commercial practice is considered to be misleading if it contains false information, and is therefore untruthful or in any way deceives or is likely to deceive the average consumer with regard to one or more of the elements contained in the list. According to paragraph 2, a commercial practice is also considered to be misleading if, in its factual context, it induces or is likely to induce the average consumer to make a transactional decision that he or she would have not taken otherwise and it involves any of the listed activities. According to Article 7, instead, a commercial practice is considered misleading if it omits relevant information that the average consumer needs in order to take an informed transactional decision, even taking into account the possible limitations imposed by the medium used to communicate.
Directive 2024/825/EU, in addition to implementing the “black list” in Annex I, amended Article 2 of Directive 2005/29/EC by introducing, among others, with points (o), (p), (q) and (r), the definitions of «environmental assertion», «generic environmental assertion», «sustainability label» and «certification scheme», Article 6 by adding environmental or social characteristics to letter (b) of the list of elements in paragraph (1) and also Article 7 by dictating that where a trader provides a service which compares products and provides the consumer with information on environmental or social characteristics, information about the method of comparison, the products which are the object of comparison and the suppliers of those products, as well as the measures in place to keep that information up to date, shall be regarded as material information, relevant to qualify a commercial practice as a misleading omission.
The «Definitions» referred to in Article 2 of Directive 2005/29/EC, at the time, as far as France is concerned, were included in Article «liminaire à L. 823-2» of the Code de la consommation, the «Misleading Actions» referred to in Article 6 in Article L. 121-2 and the «Deceptive Omissions» referred to in Art. 7 in Art. L. 121-3, while the “black list” of commercial practices considered in all cases deceptive in Annex I can be found in the “liste noire” in Art. L. 121-4.
For what concerns Italy, those provisions resulted in Articles 18 and 21 to 23 of the Consumer Code, that are likely to be the very provisions that will accommodate the changes introduced by the “Greenwashing Directive”.
In the fight against écoblanchiment, France, at any rate, has moved a few steps further than Italy. As noted, indeed, on the one hand, it has already adopted more specific provisions, contained in the Code de l'environnement, for claims of carbon neutrality of products in advertisements, prohibiting them if the professional does not make available to the public appropriate documentation to verify the accuracy of the claims made (Section 9, Chapitre IX, Titre II, Livre II). Moreover, France has already introduced in the Code de la consommation, with Article 10 of the “Loi climat et résilience”, in the list of possible objects of misleading information, the environmental impact as an essential characteristic of the good or service (Art. L. 121-2, 2°, point b) and the scope of the advertiser's commitments on environmental matters (Art. L. 121-2, 2°, point e).
Specific textual references will be introduced into Italian law, instead, only following the transposition of the amendments to Directive 2005/29/EC by the “Greenwashing Directive”.