Contributing to the green transition is one of egta’s members’ priorities. While not all European markets are currently actively engaged in these discussions, a significant number of sales houses are developing solutions aimed at dedicating a part of their advertising inventory to environmental concerns.
However, in doing so, these sales houses face numerous barriers to innovation and progress, which unfortunately are not to resolved by the recent proposal from the European Commission for a directive on green claims. On top of this, the text introduces new obligations which will be complex to implement.
We support a simplified, coherent, and harmonised approach to environmental advertising regulations that promote transparency and responsible practices within the broadcasting sector that would not lead to greenhushing1.
Establishing a simple regulatory model that facilitates implementation
Clarifying and standardising terms and definitions, as certain terms in the directive are ambiguous or overly broad
While this directive draws extensively from the framework established by the Unfair Commercial Practices Directive (UCPD) and is supplemented by the Empowering Consumers for the Green Transition (ECGT) Directive, utilising familiar terminology such as traders, it is excessively intricate. Several unresolved points merit attention:
- The use of the term “textual” in defining an “explicit environmental claim” introduces ambiguity and fails to provide clarity on whether it exclusively pertains to messages or representations in written form, as opposed to visual or graphic elements. It would be prudent to adopt language already established in European legislation, referring for instance to messages or representations.
- The definition of “environmental aspect” is imprecise and excessively broad, potentially encompassing an unlimited array of specificities within an environmental claim.
- The reference to “aggregated indicators established by Union law” in Article 5(5) lacks explanation within the text.
Ensuring better consistency with relevant legislative texts in the field, especially considering the recently adopted Empowering Consumers for the Green Transition Directive (ECGT)
The proposed Green Claims directive must be interpreted in conjunction with the UCPD and the recently ratified Empowering Consumers for the Green Transition (ECGT) directive, which concluded its Trilogue process in September 2023. Notably, several definitions recur in both documents, such as “Explicit environmental claim”. Furthermore, there are references to definitions adopted in the ECGT Directive, including “Environmental claim,” “Sustainability label,” and terms defined in separate legislation without any acknowledgment in the current proposal, such as “Sustainability information tool” and “Recognised excellent environmental performance.”
The significance of this matter is heightened by the fact that the ECGT Directive, although recently adopted, substantially modified the Commission’s initial project, impacting the proposal concerning green claims. Consequently, we respectfully request that the Commission undertakes a thorough examination of the coherence between the two texts, taking into account the adjustments made to ensure the proper implementation of these regulations. Finally, it is pertinent to address the question of cooperation among the teams responsible for these issues within the Commission, given the involvement of DG Environment, Unit B1 for Green Claims, and DG JUST, Unit E.1 for the ECGT Directive.
Enhancing recognition of self-reg0ulation and co-regulation models currently governing these legal aspects
As a matter of principle, advertising is subject to rigorous regulation, and these laws have been successfully upheld through the systematic coexistence of self-regulatory systems and legislative provisions. Various self-regulatory bodies have established their own codes of conduct in this domain, complementing the existing ICC code that governs this sector.
These organisations also possess the requisite expertise and experience to effectively manage complaints in this area, as evidenced by a non-exhaustive list of recent decisions.
Examples of decisions adopted by self-regulatory organisations in Europe:
- JEP in Belgium, ruled on a question of green claim linked to the use of a specific term and based on the ICC Code. More specifically, it ruled in this very instance that the ad did not properly inform the average consumer on the significance of the claim used.
- JDP in France, ruled similarly a lack of information to the consumer. However, the jury argued that a second and more comprehensive version of the ad, which contained the contentious claims that was clarified by explicit wording, was not likely to mislead the public about the environmental properties of the brand’s products, and is not disproportionate.
It is therefore imperative that Member States, in their appointment of competent authorities as stipulated in Article 13 for the purpose of ensuring the proper application and execution, particularly of Articles 5 and 6, are strongly encouraged to acknowledge the pivotal role played by Self-Regulatory Organisations (SROs). This similarly applies to Articles 15 and 16. This well-established model is recognised in recitals 12 and 14 of the Audiovisual Media Services Directive.
Resolving uncertainty around procedures
The primary challenge faced by egta members when implementing policies aimed at promoting the dissemination of green advertising campaigns or endorsing environmentally conscious products or brands on television or radio is the issue of responsibility. The prevailing model in this regard is more punitive than incentivising. Consequently, it results in reluctance among actors involved in the advertising value chain to embrace practices that would advocate for brands whose products or ethos are conducive to fostering ecological transitions and therefore broadcast relating campaigns.
Therefore, it is imperative that the following two aspects be considered in the ongoing discussion of this directive.
Establishing clear responsibility for each actor in the value chain regarding green advertising
Presently, accreditation bodies, or certification organisations, differ from one market to another. In the Germany and Austria for instance, some sales houses rely on a climate neutral label that does not provide indications of emissions while in the UK, a non-for-profit initiative partners with several entities, including the UN Global Compact, and delivers best practices to mobilise the private sector. Finally, in France, a public agency under the Ministry of Environment, encourages the actors active within the advertising value chain to be more responsible, while itself providing limited guidelines and bearing to responsibility.
At this stage of reviewing the legislative proposal, the trader’s liability regime remains somewhat obscure. In this context, advertising sales houses fall within the scope of this directive in two distinct ways, which are not necessarily mutually exclusive:
- As autonomous traders, for instance, when offering their own commercial products for the purpose of ‘sustainable advertising’. It can also be the case when engaging in cross-promotion of a product or leading a campaign where the channel or sales house is the central subject.
Examples of commercial products linked to sustainability led by sales houses
- When disseminating an advertising campaign on behalf of an advertiser, they interact directly with the listener or viewer consuming the advertisement. In this capacity, it is unclear whether they may assume the role of a trader as they convey the message. We would like to point out that, in some markets, pre-clearance of the TV and radio spots is completed by third-party entities. In such case, sales houses should not take responsibility over an ad that may not abide by the obligations laid out in the Green Claims Directive.
It is, therefore, essential to adequately differentiate these roles, in order to place the right obligations onto those who have the correct and needed information.
Introducing a cap on the costs and response times related to evaluation and certification bodies to prevent potential abuse
The recourse to evaluation and certification bodies will become compulsory for all traders intending to create or broadcast advertising containing environmental claims in the future. The provisions, as articulated by the European Commission, lack the requisite information to facilitate the smooth practical execution of these procedures without the risk of unchecked costs and delays.
Hence, we propose that the Directive, at both the European and national levels, incorporates mechanisms to establish caps on costs and timeframes associated with these new obligations. This limitation will serve to prevent potential misuse of power by companies entrusted with these roles.
Ensuring the compatibility of existing models
Recognising the diversity of evaluation and certification models
egta’s member companies do not necessarily rely on the same method and models when evaluating an environmental or green claim. They may differ within the same market. While we endorse the diversity of these actors in European national markets, certain risks must be addressed.
Firstly, the polarisation of interpretations and decisions made by these organisations could lead to excessive disparities within a given market. Additionally, there exists a significant risk of forum shopping, where traders may prefer one organisation over another based on a specific claim.
Furthermore, the proliferation of disparate methods would impede the free movement of goods and services and the use of cross-border advertising campaigns. It is also important to note that the text does not provide for the recognition of any existing method or future methods across markets. This will lead to legal uncertainty for a number of actors who may rely on several organisations or launch campaigns in different markets.
Furthermore, there is currently no agreement on a universal calculation basis. While some sales houses are increasingly converging toward a unified model (cf. DK in France), numerous uncertainties persist. This is particularly evident when stakeholders in the supply chain of an advertising campaign each maintain their unique calculation basis. For example, an advertising agency may calculate emissions, considering CO2, while a sales house may only consider carbon emissions.
The French trade body for TV sales houses SNPTV adopted in September 2023 a common carbon footprint calculator ‘DK’ for the broadcast of advertising campaigns on linear and video-on-demand.
This calculator should play a pivotal role in fostering the creation of a dependable, harmonised, and interoperable metric for assessing the carbon footprint with advertising. It was seamlessly integrated into the French trade body for brands UDM’s Media referential and aligns with the industry’s sustainability commitments. The calculator is consistent with the one recently introduced by the French trade body for radio sales houses, the Bureau de la Radio.
On the other hand, the agencies, represented by UDECAM, launched in May this year its own tool to measure the global environmental footprint of cross-media campaigns, relying on an another third party company, Glimpact
Lastly, while the Directive proposal envisions the possibility of adopting delegated acts (cf. article 3 (4)) to supplement the implementation of principles outlined in articles 3 and 5, it would be more expedient to make this a clear mandate from the outset.
[1] Greenhushing is the paradox in which companies, despite having a pro-environmental policies approach, avoid or hesitate to communicate or advertising about these.