EU cracks down on greenwashing in aviation

The question

What does the EU’s targeting of 20 airlines say about it’s increasingly low tolerance for misleading green claims? 

The key takeaway

The European Commission and the EU Network of Consumer Protection Cooperation have written to 20 airlines accused of making potentially misleading green claims, requiring that the airlines respond within 30 days addressing how they will rectify their green claims and ensure compliance with the Unfair Commercial Practices Directive going forward. This follows the recent landmark Dutch case of Fossielvrij NL v KLM, where the court found that KLM’s environmental claims were misleading and constituted greenwashing. This case was the first ruling against an airline for greenwashing and is expected to set a strong international precedent.

The background

On the back of its “European Green Deal”, where it has set itself a target of reaching carbon-neutrality by 2050, the EU is increasing its focus on consumer protection in the environmental space. Key to this focus are the existing Unfair Commercial Practices Directive (UCPD), the Consumer Rights Directive (CRD), the upcoming Empowering Consumers for the Green Transition Directive (see our Summer 2024 Snapshot) and the Green Claims Directive (see our blog here). Under the UCPD, misleading actions and omissions are prohibited where they are likely to materially affect the purchasing decision of a consumer.

The development

Letter to EU airlines

A letter sent by the European Commission (the Commission) and EU Network of Consumer Protection Cooperation (CPC Network) accused 20 airlines across the EU of breaching the UCPD through misleading actions and omissions relating to environmental claims made. Examples given in the letter include claims that paying additional fees could offset flight CO2 emissions by financing climate projects, and the use of the terms “green”, “sustainable”, and “responsible” alongside claims that the airlines were heading towards net-zero greenhouse gas emissions, without any clear and independently verified commitment. The letter also claimed that some of the airlines were displaying comparisons between the CO2 emissions of different flights, and a CO2 emissions calculator for flights, without providing the basis for these calculations. The letter gave the airlines 30 days to respond and set out how they would rectify the issues raised.

Fossielvrij NL v KLM

The letter comes not long after the District Court of Amsterdam’s decision in the case of Stichting ter bevordering van de Fossielvrij-beweging v Koninklijke Luchtvaart Maatschappij N.V., in which two campaign groups alleged that 19 statements made by KLM airlines in its advertising were misleading. The claimants asked the court to:

• confirm that the statements were misleading
• impose an injunction to prevent KLM from making similar statements in the future
• order KLM to remove the statements from the media, and
• order KLM to rectify the statements.

The court held that 15 of the 19 statements were misleading, such as “join us today for a more sustainable future”, as they were too vague and generic without actual evidence. On the other hand, statements such as “together we can make a difference” were found to not be misleading as they were akin to a general call for action. The Court decided not to impose the requested injunction or order KLM to remove the statements, as the statements had already been removed from the media. KLM had also confirmed that they would not be using the statements again and the Claimants had nevertheless failed to prove that customers continued to rely on the statements to make purchasing decisions. 

The Commission said that they will meet with the airlines alongside the CPC Network to discuss their action plans with regards to tackling misleading environmental marketing. The Commission will also monitor the airlines’ execution of the required measures, which if not implemented properly, risks enforcement action being taken by the CPC.

Why is this important?

As part of its “European Green Deal”, the EU has set itself the target of reaching climate-neutrality by 2050. The EU’s letter to the airlines is yet another sign that it is extremely serious about taking active steps to hit this target. See also our Summer 2024 Snapshot on the EU’s new Empowering Consumers Directive, which enhances consumers’ rights over misleading environmental claims.

Any practical tips?

Airlines should be particularly mindful of making green claims – after all, aviation and sustainability are two topics that do not sit well together. See our previous Spring 2024 Snapshot, where we covered the Advertising Standards Agency’s (ASA) rulings on ads by Air France, Etihad, and Lufthansa. 

On a wider level, all businesses should be aware of the EU’s increasing focus on misleading green claims and ensure that any such claims are accurate, verifiable and substantiated.

Summer 2024