On 20 December 2019, the Italian Competition Authority ("ICA") fined Eni S.p.a. EUR 5 million for the dissemination of misleading advertising messages used in its sales promotion campaign for Eni Diesel+ fuel.
| what you need to know - key takeaways |
- This is the first fine by the ICA for "greenwashing", that is advertising messages about products' environmental credentials that are not true or that cannot be verified as true.
- The characterisation of a product as "green" can be made in relation to actual features only if the product brings about a positive benefit to the environment which can be demonstrated in absolute terms, and is not generic or relative in scope.
- Green claims must be accurate, clear, specific, unambiguous and scientifically verifiable. Even claims that may be technically true, based on an academic or legislative meaning, can be misleading for the average consumer.
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Following complaints by consumers associations and an NGO active in the field of transport and the environment, the ICA applied a EUR5 million fine on ENI who allegedly deceived consumers with so-called green or environmental claims in TV, newspaper, digital media and petrol station advertisements about:
- the positive environmental impact associated with the use of its Diesel+; and
- the alleged characteristics of the fuel, in terms of lower consumption and CO2 emissions than competing products.
In particular, the ICA found that ENI's claims were misleading insofar as:
- First, they generated confusion between the Diesel+'s component (Hydrotreated Vegetable Oil or HVO) called "Green Diesel” and the Diesel+ fuel itself, ultimately inducing consumers to believe that the product as a whole (rather than just its HVO component) had a positive environmental impact.
- Second, some of the product's alleged credentials, such as the reduction of gaseous emissions "up to 40%” and CO2 emissions by 5% on average, as well as lower diesel consumption "up to 4%", were not confirmed by the ICA's findings.
The ICA held that the "Green Diesel” designation, the "green component" and "renewable component” qualifications, were used in a suggestive way, suggesting Diesel+ could help protecting the environment, whereas the product concerned was fuel which, by its nature, is highly polluting and cannot be considered "green" at all.
The ICA pointed out that green or environmental claims are a key advertising tool which can significantly affect purchase choices by consumers, based on their increased sensibility towards such issues. The characterisation of a product as "green" can be made in relation to actual features only if the product brings about a positive benefit to the environment which can be demonstrated in absolute terms, and is not generic or relative.
Such claims must be supported with the provision of information to consumers about the meaning of the claims aimed at letting them believe, or otherwise suggesting, that the product has a lower impact on the environment. Even claims that may be technically true, based on an academic or legislative meaning, can be misleading for the average consumer.
In the same vein, the ICA clarified that claims about the characteristics of the Diesel+ were such as to enhance the green claims. In particular, the ICA clarified that ambiguous and broad claims which are difficult to substantiate should be avoided by traders. Indeed, general benefit claims are likely to create confusion about the actual properties or benefits of specific products, as they will likely be perceived by consumers as absolute statements. Claims that are not true or where it cannot be verified that they are true, are described as "greenwashing".
The ICA imposed a EUR 5million fine, ultimately rejecting ENI's argument that the "green" qualification is not an absolute statement but a relative indication that entails a comparison with competing products.
With thanks to Maria Rosaria Miserending of Ashurst for her contribution.
