Last week, the Commission has presented a new proposal in the context of its Consumer agenda and circular economy action plan, the Proposal for a Directive on Empowering Consumers for the Green Transition. The proposal aims to empower consumers to play their role in the transition to a circular economy by providing them more information concerning key sustainability features of the products they buy and by clearing out misleading information – also known as greenwashing.
The Directive has a relatively short text with only two main articles, amending respectively the Unfair Commercial Practices Directive (UCPD) and the Consumer Rights Directive (CRD) to add a few items. I will split the overview in two posts in order to avoid a text wall, so here we go with the first part: changes to the UCPD.
First off, the proposal adds a number of practices to the blacklist of practices that are always unfair under articles 6 and 7 UCPD. These include, in essence:
- Displaying sustainability labels which are not based on a certification scheme or established by public authorities;
- Unsubstantiated or inflated environmental claims, including when mandatory requirements are presented as distinctive features of the product;
- Omitting to inform consumers about planned obsolescence features or about the adverse impact certain updates may have on product functionality;
- Omitting to inform consumers of the limited reparability of a product or of the fact that the product is designed to limit its functionality when used in combination with non-original spare parts;
- Inducing the consumer to replace parts of a good earlier than necessary.
Based on occasional news, it seems plausible that at least some of these practices were in fact already the target of national enforcement policies. More innovative is the opening to a broader meaning of “sustainability” in some of the provisions, which is explained in the recitals: “Information provided by traders on the social sustainability of products, such as working conditions, charity contributions or animal welfare, should not mislead consumers either.” Hence in the proposal’s article 1,
‘sustainability label’ means any voluntary trust mark, quality mark or equivalent, either public or private, that aims to set apart and promote a product, a process or a business with reference to its environmental or social aspects or both.
Comparably, “sustainability information tools” are defined as
software, including a website, part of a website or an application, operated by or on behalf of a trader, which provides information to consumers about environmental or social aspects of products, or which compares products on those aspects;
Why does the Directive engage with such information tools?
According to the proposal, if a trader provides such tools, they would have to include “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”. All this information shall be considered “material information” to the ends of article 7 UCPD, meaning that failure to include it (in a way reasonably accessible to the consumer) will be considered a misleading omission.
This is, given the state of real-world developments, perhaps a bit disappointing: in particular, it says nothing about more socially pressing omissions: should a seller who, for instance, has been made aware of terrible working conditions at their production sites not make mention of that on their website, at least when they hint in any way to their efforts (which doesn’t seem prohibited – “unsubstantiated environmental claims” would be forbidden but in the social compartment only made-up labels seem to be covered)? It may well be that some member states could read this requirement into the directive’s spirit since the proposal does not amend the general unfairness and misleading-ness tests. However, it would be even better if loopholes like this one would be addressed in the political process in the months to come.
