The accusation of greenwashing is a political issue, and companies need to focus more closely on the topic now that Brussels has tightened the requirements. When it comes to the words “climate neutrality", judges are also called upon in Germany. On May 8, the Duisburg Regional Court ruled that Aldi Süd’s claim “First climate-neutral food retailer in Germany since 2017” was unfair. The lawsuit was brought by the Wettbewerbszentrale (German Agency to Combat Unfair Competition).
The Federal Court of Justice (BGH) will also soon be dealing with the issue of climate neutrality from a legal perspective – the “Katjes case.” The ruling by the judges in Karlsruhe will answer the question of how clearly companies must emphasize in their advertising what the term “climate neutral” actually meany.
Did the confectionery manufacturer Katjes have to make it clear that the “climate neutrality” it advertised was achieved by offsetting CO2 emissions – and not by completely avoiding them? The BGH judges had indicated at the hearing in mid-April that they were inclined to take a strict view – in other words, they could demand transparency regarding the way in which climate neutrality was advertised, reported the Lebensmittelzeitung. They now want to rule on June 27.
It is a landmark decision that the Wettbewerbszentrale had sought in order to achieve legal certainty for companies that advertise as “climate neutral.”
Specifically, it concerns a Katjes advertisement printed in the Lebensmittel Zeitung in 2021. In it, the manufacturer had advertised its “green ear bunnies” with the statement “Since 2021, Katjes has been producing all products in a climate-neutral way” – with a link to the website of the service provider ClimatePartner with further information. The manufacturing process of Katjes products is indisputably not CO2-neutral.
The Wettbewerbszentrale had filed a lawsuit because it considers the claim “climate neutral” without further explanation to be non-transparent and therefore unfair. It believes that the target public understands the advertising to mean that the manufacturing process itself was climate-neutral.
At the very least, the statement must be supplemented to the effect that climate neutrality is only achieved through compensatory measures. The BGH appears to take a similar view. The presiding judge, Thomas Koch, referred to the BGH’s earlier “environmental angel” case law from the 1990s, which was “not outdated, but more important today than ever.” This case law sets out strict requirements for environmental claims and extensive information obligations in advertising or on the product itself.
Label Removed from Packaging
The head office had lost in the previous instances. “The proceedings are no longer relevant for us because we stopped advertising by using ‘climate neutral’ a long time ago,” explained Katjes legal advisor Ulf Dörner following the hearing, wrote LZ.
ClimatePartner emphasized: “We already decided last year to no longer offer the ‘climate neutral’ label.” With the new label solution in use since then, ClimatePartner is taking up some of the upcoming EU regulations – such as the “Green Claims Directive” or the “Directive on Empowering Consumers for Ecological Change.”
A landmark decision on legally compliant “climate-neutral” advertising is urgently awaited. There are already numerous rulings in this context, some of which diverge considerably; there is a lack of a uniform line.
For example, the Düsseldorf Higher Regional Court ruled that such advertising by jam manufacturer Mühlhäuser was inadmissible, the Schleswig Higher Regional Court approved such advertising on packaging by bin bag manufacturer Pely-Plastic – and the Karlsruhe Regional Court in turn prohibited dm from using the claim on packaging for one of its private labels.
