Produce Labels and the Circular Economy: CJEU interprets "Packaging" in Interfel (C-772/24)

On August 1, the CJEU delivered an interesting judgment in Interfel (C-772/24), which could assist in promoting sustainable consumption. 

Photo by amoon ra on Unsplash

In an effort to combat waste and support circular economy, French law prohibited the placing of labels directly on fruit or vegetables sold on French territory, unless the labels were home-compostable and made of bio-sourced materials (para 8). The idea was straightforward: consumers could more easily and sustainably dispose of spoiled fruit or vegetables. (Who has not spent hours of their life removing annoyingly sticky, unwilling-to-just-let-go labels from produce?) 

However, the question arose whether this national rule complied with Directive 94/62 on packaging and packaging waste. Article 18 of the Directive requires the Member States to permit the sale of products on their territory if their packaging complies with the Directive. This provision prevents Member States from imposing additional restrictions that could hinder the internal market.

The CJEU began by emphasising the Directive's environmental objectives: to reduce the impact of packaging and packaging waste on the environment, covering all packaging placed on the market (para 12). To assess whether the French measures complied with EU law, the Court examined the Directive's definition of "packaging". The term must be interpreted broadly (para 13), but still fulfil one of the functions set out in the Directive, namely: "containment, protection, handling, delivery and presentation of goods" (para 15). Packaging must also fall into one of the three categories: "sales packaging, grouped packaging or transport packaging" (para 17). Ancillary elements integrated into packaging are also considered packaging (para 20). Annex I to the Directive provides illustrative examples of packaging, including "labels hung directly on or attached to a product" (para 21).

In answering the national court's question, the CJEU stressed that, to qualify as packaging, a product must meet the above criteria (para 25). Specifically, it must perform at least one of the three main packaging functions: containment/protection, handling/delivery, or presentation. Labels on fruit and vegetables are typically smaller than the produce itself and therefore unlikely to provide containment or protection (para 28). Nor are they generally used for handling or delivery purposes (para 29). The remaining question was whether labels serve a presentation function - a matter the Court noted could depend on the specific context/ label (para 30).

In conclusion, the CJEU indicated that France may impose additional sustainable requirements for such labels, but only where the labels do not perform any of the three functions assigned to packaging under EU law.

Hague court upholds a municipal ban on fossil fuel ads: implications for EU (consumer) law

The climate malaise has invited many new regulatory measures in recent years to fight against greenwashing, with advertising bans being particularly noteworthy. In September 2024, The Hague passed a municipal law banning fossil fuel-related advertising in public spaces like billboards and bus shelters (Art. 2:97(7) City Ordinance). The ban outlaws ‘advertising for products and services related to fossil fuels, including air travel, plane tickets, grey energy contracts, gas contracts, cruise holidays or cars with fossil fuel or hybrid engines’ (Art. 1:1(x)). The ANVR – the Dutch trade association for travel agencies – and the travel company TUI filed summary proceedings against the ban. On 25 April 2025, the District Court of The Hague upheld the ban. It thoroughly assessed the measure’s compatibility with the Unfair Commercial Practices Directive (UCPD), EU free movements and fundamental rights (freedom of expression and the freedom to conduct a business).

This ruling is the first time a court reviewed and upheld a municipal ban of this nature, making it a noteworthy legal development for EU (consumer) lawyers in light of the burgeoning regulatory initiatives. Besides the Hague ban, Amsterdam has similarly banned fossil advertising since 2021, while France has introduced a national ban in 2022. The UN Secretary-General, António Guterres, has even called for a global ban on all fossil fuel advertising. Apart from fossil advertising, several Dutch cities, including Haarlem as the world’s first, have banned meat advertising, and France has outlawed advertising for ultra-fast fashion. Building on the Hague decision, this post summarises the legal arguments in favour of the legality of similar advertising bans under EU law.

 

The Court’s Ruling

Compatibility with UCPD (paras 5.11-5.12): According to ANVR and TUI, the UCPD, as a maximum harmonisation instrument, prohibits Dutch law from providing a higher level of protection and thus renders the fossil ads ban incompatible. Referring to the Commission’s UCPD Guidelines, the Hague Court clarified that the UCPD ‘does not cover national rules intended to protect interests which are not of an economic nature’ and thus ‘does not affect the possibility of Member States to set rules regulating commercial practices for reasons of health, safety or environmental protection’. According to the municipality of The Hague, the ban is not intended to protect the economic interests of consumers but aims to prevent the negative effects of climate change and to protect the health of residents and visitors of the city. Therefore, the ban is not contrary to the UCPD.

Compatibility with the free movement of goods (Art. 34 TFEU, paras 5.13-5.15): Following the CJEU’s Keck jurisprudence, national advertising restrictions are only assessed under Art. 34 TFEU, which prohibits discriminatory measures on imported goods. According to the Hague Court, the ban applies indistinctly to Dutch and international market participants, and ANVR and TUI did not demonstrate otherwise. Even if the ban constitutes a restriction under Art. 34, such a restriction can still be justified under Art. 36 TFEU for the protection of health and the environment. The municipality has sufficiently substantiated that the ban is suitable and necessary for achieving said objectives by encouraging residents and visitors to make more sustainable choices and reducing the use of fossil fuels. The measure also remains proportionate, as advertising through other media, such as television and newspapers, is still possible.

Compatibility with the freedom of expression (Art. 10 ECHR and Art. 11 of the Charter, paras 5.16-5.19): Art. 10 ECHR codifies the freedom of expression but allows for restrictions that ‘are prescribed by law and are necessary in a democratic society’. Following the ECtHR case law, the Hague Court referred to the existence of ‘a pressing social need’ to assess whether the ban’s restriction on freedom of speech can be justified. The Court invoked some similar arguments to those under Art. 36 and concluded that the ban complies with Art. 10 ECHR: The advertising ban is relevant for the protection of health and the environment, and advertising for the plaintiffs’ other products or through other media remains possible. In addition, Art. 11 of the Charter does not provide more extensive protection. The municipality also contended that the Charter does not apply as the dispute measure does not concern the implementation of EU law, which the Court agreed. (In a separate section (paras 5.8-5.10), the Court also discussed the freedom of expression under Art. 7 of the Dutch Constitution, but the national provision does not protect ‘commercial advertising’.)

Compatibility with the freedom to conduct a business (Art. 16 of the Charter, paras 5.20-5.21): While the Hague Court stated that the Charter does not apply, for the sake of argument, Art. 16 of the Charter still would not invalidate the advertising ban. The violation of Art. 16 should only be assessed in light of the analysis under Art. 34 TFEU, and a separate assessment is unnecessary.

This analysis should be read in light of the Hague Court’s assessment on the municipality’s competence (paras 5.6-5.7). The Court confirms that the municipality of The Hague is competent to act against climate change and promote public health by setting rules within its boundaries. It is deemed untenable to argue that flying less does not have a direct positive impact on air quality within The Hague. The Court pointed out that reducing flying, ‘in combination with other environmental measures taken by the municipality’, can decrease CO2 emissions. This is not altered by the fact that the contribution of the municipality may be small on a national or global scale. ‘Every little bit helps, and the municipality wants to do its bit’.

The Hague Court also assessed the compatibility of the ban with the general principles of good administration (paras 5.22-5.34), including the principles of lex certa, proportionality, equality and the obligation to state reasons. However, none of these principles are violated.

 

Comments

While scholars have presented convincing arguments that bans on advertising for carbon-intensive products do not violate EU law (see Kaupa; Venzke and Ankersmit; Van de Berg and Eckes), the Hague Court’s decision sets a positive precedent for similar action, especially at the local and municipal levels. The fact that the Hague Court did not even feel the need to ask for a preliminary ruling from the EU Court also indicates the ban’s clear legality under the EU legal framework.

Here are some main lessons from this case. From the perspective of EU secondary law, the UCPD does not pose a legal obstacle insofar as the ban is framed as exclusively for health and the environment, and not for consumer protection. The reference to consumer protection, even as a co-objective for a mixed-purpose measure, will invoke the fully harmonised UCPD, which, despite the recent amendment to upscale its relevance for combating greenwashing, does not square with a comprehensive ban. While this construction nonetheless allows national and local authorities to introduce an advertising ban, it is regrettable that the UCPD views consumer protection of economic interest in such a narrow sense. A more enduring solution would simply be to amend the UCPD (either its harmonisation scope or its objectives) or to interpret its objectives in a more long-term, environmentally friendlier way (for example, in conjunction with Art. 11 TFEU).

Moreover, the Hague Court did not discuss the Audiovisual Media Services Directive (AMSD), which was previously invoked in another case heard by the Dutch Advertising Code Committee. Art. 9(1)(c)(IV) AMSD prohibits advertisements encouraging ‘behaviour grossly prejudicial to the protection of the environment’. The Dutch Advertising Code Committee rejected the reading that this provision justifies bans on fossil advertising, which was based on an artificial distinction between advertisements and the (environmentally harmful) products being advertised. But it has been argued that the AMSD provision not only allows but also demands bans like that of The Hague. Moreover, the fact that the EU legislature has already undertaken a balancing exercise when enacting secondary law, ie weighing the tension between an advertising ban and free speech, provides more concrete guidance for the judicial assessment.

From the perspective of EU primary law, the Hague Court informed us of a twofold legal strategy. First, regarding provisions like Art. 34 TFEU and Art. 16 of the Charter, a comprehensive and non-discriminatory ban simply invokes no violation. While not discussed by the Hague Court, neither is an advertising ban liable for infringing upon property rights (Art. 1 of Protocol 1 ECHR, Art. 17 of the Charter): a contractual right to use advertising spaces can hardly be qualified as a proprietary interest, and its decrease in economic value hardly amounts to an infringement.

Second, even if a restriction of fundamental rights or freedoms is found, such as the freedom of expression, there are almost always exceptions available for such a restriction to be justified for the legitimate aim of public or general interest. This should include the protection of health and the environment (as well as broadly defined consumer protection), given the urgency of climate change (as we trail behind the Paris Agreement goals) and that the ECtHR has interpreted Art. 8 ECHR as encompassing the protection against climate change.

Next, the justification usually concerns a three-step assessment of suitability, necessity and proportionality. We can draw some general lines of argument from the Hague decision. (A lot can also be learnt from the advertising restrictions on alcohol and tobacco.)

• First, an advertising ban is suitable for pursuing the aims of health and environmental protection. In light of the significant carbon impact of private consumption, the IPCC Report has highlighted the urgent need for changes in consumption patterns to achieve climate neutrality. To this end, advertising and other commercial communications play a crucial part in shaping consumer choices and normalising undesirable consumption behaviour. As such, as the Hague Court correctly pointed out, advertising bans can encourage consumers to make more sustainable choices and reduce carbon emissions.
• Second, an advertising ban is also necessary. Here, it is more difficult to generalise the analysis as it usually pertains to the scope and essence of each restricted right or freedom. But the Hague Court helpfully reminded us that the fact that banning fossil advertising within a municipality’s boundaries is insufficient for curbing climate change does not render the measure unsuitable or unnecessary. The necessity of the advertising ban must thus be viewed as part of a broader policy mix in the climate transition.
• Third, regarding proportionality in a strict sense, it is again related to the specific restricted right. This case concerns a ban at a municipal level on advertising in public spaces. Its restrictive scope means that the proportionality test is not hard to fulfil. For bans at the national or EU level, the proportionality test may be more challenging. One approach is through comparison with feasible alternatives. For example, the proposed Green Claims Directive requires ex-ante verification for all explicit environmental claims prior to market access. By comparison, a ban targeting advertising for fossil fuel and other carbon-intensive products should be considered less restrictive and thus proportionate.

 

Overall, the Hague Court’s decision is a positive message for the legal battlefield against climate change. It brings legal clarity and paves the way for further – necessary but insufficient – action against greenwashing and unsustainable market practices.

Proposal for Green Claims Directive

The second proposal published on March 22 by the European Commission was for a new Green Claims Directive (COM/2023/166 final - Directive on substantiation and communication of explicit environmental claims).

Boxed Water Is Better on Unsplash

The aim of this proposal is to improve consumer protection against greenwashing and misleading environmental claims, as well as providing consumers with better quality information on the environmental impact of consumer products. This could facilitate consumers making environment-friendly choices. Further, the proposal aims to benefit traders by facilitating fair competition on the environmental sustainability of their products. The envisaged way to achieve this is by introducing common minimum rules on what constitutes a green claim and when traders could make such claims. 

The proposal addresses:

• Explicit environmental/green claims (Article 2(1) and (2))
• Comment 1: This proposal does not contain an independent definition of an environmental claim. It refers here to another proposed Directive (empowering consumers for the green transition through better protection against unfair practices and better information - COM/2022/143 final), which suggested amending Unfair Commercial Practices Directive by adding this definition in its Article 2(o). Empowering Consumers for the Green Transition Directive was proposed a year ago by the Commission but still awaits approval by the Parliament. If it is adopted then environmental claims will be defined as: "any message or representation, which is not mandatory under Union law or national law, including text, pictorial, graphic or symbolic representation, in any form, including labels, brand names, company names or product names, in the context of a commercial communication, which states or implies that a product or trader has a positive or no impact on the environment or is less damaging to the environment than other products or traders, respectively, or has improved their impact over time". We are still awaiting the introduction of this definition, which aims to already prohibit the use of generic environmental claims like 'eco-friendly' or 'green'.
• Comment 2: The above is a very broad definition, but the new proposal aims only to apply to explicit environmental claims. This would be 'an environmental claim that is in textual form or contained in an environmental label'. The explicitness is then related to the form in which the claim is being made, rather than its content. Whilst this test will be easier to apply, providing more legal certainty, it is unclear why, for example, a graphic symbol (logo) on an environmental label will be more explicit than in a company name. This notion also leaves unaddressed overall (misleading) impression of many messages as presenting 'environmentally-friendly' products, e.g. by the communication using green-themed colours and images.
• Substantiation of claims (Article 3)
• Comment 1: One of the recognised issues with greenwashing is the lack of common standards on substantiation of environmental claims. The Commission introduces now various guidelines (para 1), which traders are supposed to follow whilst assessing whether their claims are substantiated and could be communicated. This assessment focuses on the life-cycle of a product, seemingly limiting the option to make green claims related to only part of the product/production process. Additionally, when there is lack of harmonisation in applying the guidelines that creates obstacles for the functioning of the internal market, the Commission reserves the right to adopt delegated acts (paras 4 and 5) further specifying, e.g. materials or processes that contribute or cannot contribute to relevant environmental impacts. Considering the so-far observed lack of harmonisation, we may have expected the proposal to already include some of these further specifications, e.g. in the form of a black list of green claims. Already, the European Environmental Bureau (EEB) commented on the regrettable 'lack of a clear ban on carbon neutral claims and on the use of green claims on products that contain hazardous chemicals' (see here). Similarly, also BEUC called for an outright ban of such misleading claims (see here). Although going forward, it makes sense for the Commission to reserve the right to act quickly on improving the market practices across the EU on substantiating green claims.
• Comment 2: To minimise the information cost for microenterprises, the proposal does not require them to follow the substantiation of claims process, unless they intend to have their green claims verified and certified. This would then be the choice of microenterprises, i.e. whether to follow the procedure from the proposal in light of any expected benefits from certification outweighing its costs.
• Communication of claims (Article 5)
• Comment 1: Green claims communicated to consumers are not only to be substantiated following the set requirements (incl. reliance on scientific evidence), but also be significant from a life-cycle perspective of a product. This should limit the amount of green claims used by traders, introducing more transparency and minimising the potential for misleading consumers. 
• Comment 2: Consumers should receive information on how to use the product to achieve its expected environmental performance, where the product use influences environmental impacts (e.g. waste sorting, use patterns impacting product longevity - Recital 34). This information should accompany the claim and could allow consumers (as well as competitors and enforcers) to easier assess the veracity of the claim. 
• Comment 3: There are additional rules specifying how green claims are to be communicated. Any claim related to future environmental performance (e.g. traders joining initiatives that will improve circularity of their products) should include a time-bound commitment for improvements of trader's operations and value chains, rather than rely on overall offsetting of negative environmental impacts, not only following from traders' own actions (Recital 35). This aims to counteract confusing climate-related claims, but as noted by the BEUC and the EEB will not be as effective as an outright prohibition of such claims. Para 6 specifies in detail what substantiating information should accompany a green claim and how it should be made available to consumers. There is a question here as to the impact that this detailed information may have on consumers' attentiveness and understanding thereof, as well as to the feasibility of placing all this information on product packaging.
• Environmental labelling (Article 8)
• Comment 1: To limit the proliferation of environmental labels, para 3 prohibits further adoption of national or regional environmental labelling schemes. Previously existing labelling schemes may continue their operation in the EU, provided they are in compliance with the proposal. New environmental labels awarded in third countries will require approval of the Commission prior to products carrying them entering the EU market (para 4). Details of all these approval processes are still to be determined.
• Comment 2: The proposal addresses also the issue of private environmental labelling schemes. These may only exist if they 'provide added value in terms of their environmental ambition' compared to existing EU, national and regional schemes, and if they are compliant with the proposal. This suggests that the new proposed private environmental labelling schemes will not be able to simply replicate environmental assessments already conducted by other available labelling scheme providers.
• Verification of claims (Articles 10-11)
• Comment 1: It is up to the Member States to set up procedures allowing for the green claims' verification. This means that the verification process will vary across the EU, in costs and procedure. However, it will need to take place before the green claim is communicated to consumers. Any self-certified environmental labels will constitute an unfair commercial practice (Recital 42). This suggests that traders will not be made able to make environmental claims spontaneously.
• Comment 2: Verifiers will be accredited third-party conformity assessment bodies, independent from traders or products whose green claims they are assessing. They will issue a certificate of conformity, where appropriate, upon verifying the claim. This certificate is not, however, guiding for the assessment of the environmental claim by authorities or courts. The proposal does not address the issue of the liability of verifiers for incorrectly verifying/certifying certain claims.

It excludes from its scope:

• Claims covered by existing EU rules 
• Comment 1: The proposal contains a long list of already binding EU rules that address various aspects of traders making environmental claims, such as the EU Ecolabel, the organic food logo, energy labelling, ecodesign requirements. It also anticipates, in its Article 1(2)(p), the adoption of future EU rules further addressing explicit green claims and excludes them a priori from its scope of application (e.g. the forthcoming 'Count Emissions EU', see Recital 13). Whilst from the legislative perspective this solution is the easiest to implement, it may not provide the necessary transparency in the market. For consumers and traders both, it will be handy to have comprehensive  graphs/illustrations/tables prepared outlining which rules apply to which products or claims, what the main differences are in these.

The proposal aims to provide more details related to enforcing the UCPD against unfair environmental claims of traders. It also foresees that consumer organisations will be able to act on the Representative Actions Directive in enforcing collective consumer interests in having access to non-misleading green claims (Article 24). The sanctions that traders could expect for making unsubstantiated green claims may be severe: up to 4% of profits, confiscation of profits and a ban from public procurement contracts, access to public funding for up to 12 months (Article 17).

New Green Deal proposals published today: Right to repair

Photo by Kilian Seiler on Unsplash

The European Commission published two new legislative proposals today implementing the programme of the European Green Deal for Consumers: Proposal for a Directive on new rules on substantiating green claims and Proposal for a Directive on common rules promoting the repair of goods (text of both proposals may be found here). Below we provide our first thoughts on the proposal on the right to repair. 

Promoting the right to repair (COM(2023) 155 final)

Consumer Sales Directive prioritises consumers' access to and choice of two remedies in case goods are defective (non-conforming the contract): repair and replacement. Traders may refuse the remedy chosen by consumers if it is impossible to provide or it would be disproportionate to provide it. Infamously, the assessment of disproportionality does not account for environmental impact of the to-be-provided remedy (although some national courts started to include this impact in their assessment). Consumers are often not incentivised to ask for repair, which may be perceived as more time-consuming, less trustworthy, difficult to obtain. For traders repairing goods is also often a less preferred solution, e.g. due to the need to keep spare parts available, arrange repair points.

The new proposal aims to address the above-mentioned issues and incentivise more uptake of repair as a chosen remedy, which should also incentivise producers and traders 'to develop more sustainable business models' (see Commission's press release here).

What are the proposed legislative changes:

• Sellers to offer repair, unless it is more expensive than replacement.
• Comment 1: This limits the choice of consumers as to their remedy. We could argue that the choice left to consumers is illusory. Unless repair is more expensive, consumers have to accept it. If replacement is cheaper but consumers would exercise their choice for repair instead, sellers would be able to claim disproportionality of remedies and provide replacement instead. 
• Comment 2: Proponents of promoting repair as leading to more sustainable consumption are bound to be disappointed by this middle-of-the-way solution. It is worth noting, that previously unless repair was more expensive than replacement, there was no disproportionality when consumers asked for repair, thus sellers needed to provide it to consumers, as well. The only difference then is that now consumers will need to accept repair even if it was not their first choice. This may increase the number of repairs on the market, but would the change really be significant? It will depend on what is calculated in the price of repair vs replacement (e.g. price of environmental impact?), the availability of spare parts etc. Assessment of disproportionality remains key and has not been further addressed by the proposal.
• Consumers to have a right of repair against producers for products that are technically repairable under EU law, when their legal guarantee with sellers expires (that is which are covered by reparability requirements)
• Comment 1: This new right fills the gap that often occurred when the product would malfunction immediately after the legal guarantee's expiry date, or when non-conformity at the moment of delivery could not be established. However, the scope of the application of this new right is rather limited (see below).
• Comment 2: Repairability requirements are any EU law requirements listed in Annex II that enable a product to be repaired. This limits the applicability of this new right to specific product categories, e.g. washing machines, dishwashers, refrigerators, vacuum cleaners, servers, mobile phones, aligning this proposal to the previously adopted Ecodesign rules. 
• Comment 3: It is producers' choice whether to repair for free (commercial guarantee) or against payment (with the hope that market pressures will keep the price reasonable). Producers may be discouraged from providing this right for free as it would drive their product prices up, unless there would be a clear and clever way to emphasise them providing free repairs. It will be interesting to observe whether consumers' transactional choices will be impacted by the difference in the provision of repair services.
• Comment 4: For goods produced outside the EU, consumers could still expect repair - either from these producers or other traders within the EU. This, as we know, may be a right that will be difficult to enforce in practice.
• Producers' duty to inform about products they are obliged to repair themselves
• Comment 1: The aim of this new information piece is to ensure consumers know they can turn to producers for repair. However, there is lack of specificity, as to how this information is to be provided to reach consumers. Well, besides required transparency, as usual. This information may be more effective if it was provided by sellers, highlighted at the point of contracting.
• Online matchmaking repair platform to connect consumers with repair points, sellers of refurbished goods in their area
• Comment 1: Article 7 introduces an obligation for the Member States to establish at least one such platform. This means that cross-border buyers may be somewhat inconvenienced, as the platforms are bound to differ in each MS The platforms need to have search functionality for goods, location of repair, repair conditions (time), availability of temporary replacement goods, ancillary services, quality standards, refurbished goods sellers. It should allow directly asking for the ERIF, as well as display of any adopted national repairability labels.
• Comment 2: Repairers may choose whether to register on the platform and MS may place conditions on who can access the repair platform. Repairers may be incentivised to register due to competition on the market, but it is also clear that some of them may not opt in. This will leave consumers with fewer choices and less transparency.
• European Repair Information Form (ERIF) available on request from repairers - to assure transparency to repair conditions and price
• Comment 1: This is supposed to facilitate comparison between different repair providers. It is interesting, however, that the form is not available by default, but only upon consumer request. This limits transparency as many consumers may not know to or take the time to ask for this form, esp. if they are looking for a quick fix of their product's problem.
• Comment 2: Consumers may be asked to pay for costs that repairers incur to provide this form. This is quite baffling, honestly, as repair remains a free remedy pursuant to the CSD, which right this new framework may undermine. Hopefully, the EP will re-write this part of the proposed Article 4 (para 3).
• Comment 3: The benefit of the proposed framework is that the ERIF would remain fixed for 30 days from the day it is provided. Consumers may then take their time comparing various offers available on the repair market.
• European quality standard for repair services - to help identifying repairers of higher quality
• Comment 1: The Commission's plan is to facilitate development of a voluntary European quality standard for repair services (Recital 27). There is then no specific standard in mind yet, which could provide more transparency as to repair quality. In the hopes that one (or more) is adopted soon, Article 7 mentions that any European or national quality standards would need to be searchable on online comparison platforms. 

It is worth it to note the new term proposed by the Directive: 'Repairer' is a natural or legal person who offers a repair service for commercial purposes, incl. independent repair points, producers, sellers.

Proposal on Empowering Consumers for the Green Transition/Part 2

 Last week, I posted a summary of the main changes the Proposed directive for empowering consumers for the green transition would bring to the Unfair Commercial Practices Directive. Today's second part will be devoted to the Consumer Rights Directive. 

Next to preventing "greenwashing" and unsubstantiated claims, the Commission aims that consumers get the right information, that is information that allows to make them more sustainable choices - in particular choosing for more energy efficient, durable and reparable products. 

Six items are added to the pre-contractual information requirements, both for distance and off-premises contracts and for other transactions coming under the scope of the Directive. 

These six additional items concern guarantees, updates and repairs (including some complicated language about telling consumers what they have not received information on).  

–information on the existence and length, of a producer’s commercial guarantee of durability for all types of goods, when this information is made available by the producer; 

–information that no information has been provided by the producer about the existence of a producer’s guarantee of durability for energy-using goods;

–the existence and length of the period during which the producer commits to providing software updates for goods with digital elements;

–the existence and length of the period during which the provider commits to providing software updates for digital content and digital services; 

–the reparability score of the good as applicable under Union law; 

–other repair information, should no reparability score be available at Union level – such as information on the availability of spare parts and a repair manual.

The guarantee information, in particular, needs to be provided also in the context of contracts concluded with electronic means, before the consumer concludes the contract. This includes the possibly confusing "non-information" referred to above ("information that no information has been provided... about the existence of a producer's guarantee of durability"). The proposal explains that, for energy-using goods, providers also need to give information concerning durability when this can be easily and reliably calculated - so the "negative information" above means sellers would have to say something like "we make no promises as to the product's durability". The proposal explains that 

The problem of limited durability contrary to consumer expectations is most relevant for energy-using goods, which are goods that function from an external energy source. Consumers are also most interested in receiving information about the expected durability of this category of goods. For these reasons, only for this category of goods, consumers should be made aware that the information about the existence of a producer’s commercial guarantee of durability of more than two years has not been provided by the producer.

While the reasoning seems plausible, the text is particularly clumsy and could use a clarification/exemplifications.  Here's to the hope that it can be improved in the legislative process - form is substance, even in consumer law :). 

Finally, it is interesting to observe that the reference to an applicable reparability score is, so far, aspirational - no such European scheme exists, despite the warm reception of the French initiative which for the first time established such scoring in Europe (the so-called "indice de réparabilité"). In this respect, a petition has been launched months ago by the Greens, but I could find no official update connecting this reference in the proposal to actual legislative initiatives in the indicated directions. 

This is it for now - while normally information requirement may not be the most exciting of developments, the connected issues here, such as the reparability score and the fight against planned obsolescence all give us reason to think that there will be quite something to report on in the near future. Stay tuned!

Proposal on Empowering Consumers for the Green Transition/part 1

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. 

Facilitating Sustainable Consumption through Private Law - call for papers

Dr Joasia Luzak (University of Exeter) and Prof Marco Loos (University of Amsterdam) are guest editors of a special issue of an open access journal Laws (by MDPI). They are inviting authors to send in their papers on the topic: 'Facilitating Sustainable Consumption through Private Law'. 

The deadline for submission of interest/ abstracts is June 30, 2021 (to j.luzak (at) exeter.ac.uk and m.b.m.loos (at) uva.nl)

The deadline for submission of full papers: October 15, 2021.

Message from the Guest Editors 

In this Special Issue, we would like to focus on the discussion of rules, which would accommodate sustainable consumption, leading to a structural change of consumer lifestyles and allowing to fulfil global commitments. We refer here to the UN 2030 Agenda for Sustainable Development, including specifically UN Sustainable Development Goal 12 (SDG-12), relating to sustainable production and consumption, as well as the European Commission’s New Consumer Agenda prioritising the green transition.

The contributions to this Special Issue may discuss various areas of private law that could either help empower consumers to reach for ‘the green transition’ or motivate producers and traders to use new materials, products or engage in new business practices. Any areas of private law that could help with the promotion of more sustainable consumption could be discussed in the contributions to this Special Issue, whether it would be sales or services contracts, online or offline contracts, contract or tort law, substantive or procedural rules, etc. We leave it to our contributors to decide and discuss whether and how this could be achieved, e.g. by: 

• reframing the current rules on:  
• consumer information,  
• non-conformity,  
• remedies, or 
• designing new rules around the concepts of:  
• product safety  
• product liability, or 
• banning or preventing planned obsolescence,  
• encouraging updates and upgrades of goods and digital content,  
• relating consumer rights to corporate social responsibility claims and policies.

With this Special Issue we plan to further contribute to the growing body of academic work in this area, continuing the discussion on various regulatory and self-regulatory solutions. We especially welcome contributions with an interdisciplinary angle.

Green Consumption Pledge

Yesterday, the European Commission launched the Green Consumption Pledge, which is announced as the first initiative of the new Consumer Agenda, aiming to promote sustainable consumption. By signing the pledge companies commit to improve their environmental impact and help consumers make more sustainable purchases. The pledge is actually a set of five core pledges, and companies need to take specific measures in at least 3 out 5 of these pledges upon signing. They will also publish data on their progress to achieving these steps. The five core pledges are as follows:

1. Calculate the carbon footprint of the company (incl. supply chain) and commit to footprint reduction;

2. Calculate the carbon footprint of selected flagship products and to achieve certain reductions therein;

3. Increase the sale of sustainable products or services;

4. Commit part of the corporate PR expenditure to the promotion of sustainable practices;

5. Ensure information provided to consumers in relation to the company and product carbon footprints is easy to access, transparent and up-to-date.

This initiative is aimed at non-food products (as food products are covered by the separate Code of Conduct within the Farm to Fork strategy). Companies may join the pledge by contacting the Commission by end of March 2021. The companies that so far have joined are: L'Oreal, Renewd, Lego Group, Decathlon, Colruyt Group.

From the news: Amazon and unsolicited shippings

As sustainable - and unsustainable! - consumption becomes increasingly topical in consumer law and policy, news from the UK suggest Amazon is not ready to change their game to face their responsibility viz the climate emergency. Incidentally, in doing so they also provide quite bad consumer service. 

What is the story? According to reporting by the Guardian, Amazon uk has more than once been in controversies with customers over unsolicited deliveries. While some mistakes can happen when a company arranges millions of shipments per year, several customers have been met by refusal when asking Amazon to take back what had been wrongly delivered - with the company suggesting that the consumers simply dispose of the (new, perfectly functioning) goods. 

In the latest news item, the mistaken delivery concerned an excercise bike weighting 28 kilos. An elderly customer from Bristol received the bike after having ordered a completely different product. 

"After finding his way through the maze of the Amazon website he says he eventually found a number to call where a very helpful person agreed to replace his missing logs. But when these arrived the second driver also refused to take the bike away." 

When Amazon instructed him to dispose of the particularly bulky good as he liked, the customer approached the Guardian. Amazon changed their mind after the newspaper got involved, accepting to take back the bike and sending amenities to the puzzled customer.

The company's original reply is broadly in line with article 28 of the Consumer Rights Directive - providing that in case of unsolicited supply of goods or services consumers are not required to pay (but, the rule implies, may keep what has been delivered). However, in case of numerous wrong deliveries or bulky items such as a training bike, inviting consumers to dispose of the good is both highly questionable in terms of sustainability and oblivious of consumer interest. As the Bristol consumer observes in the Guardian article, if he was instructed to keep the bike, this likely means that another customer, who had originally ordered the bike, was probably delivered another widget. 

Can we really not do better than this?