Adopting a human rights approach to environmental protection and corporate climate accountability requires a focus on the obligations of governments and the responsibilities of large companies, and also on empowering consumers as rights holders. It can help promote sustainable consumption, as it encourages consumers to make choices that are good for both themselves and the environment. Tackling greenwashing is an example of an issue for which human rights, consumer rights and climate goals align.

Furthermore, consumer empowerment depends on access to information and effective access to justice to ensure the enforcement of rights. As demonstrated by the European Union Agency for Fundamental Rights (FRA)’s prior research on business and human rights, the presence of procedural obstacles frequently prevents individuals from asserting their rights against corporations, thereby rendering those rights ineffectual. A rights-based approach to environmental protection also aims to increase access to justice not only for individual victims but also for communities. This includes allowing non-governmental organisations (NGOs) to represent communities and protect the environment in the public interest. In July 2022, the United Nations General Assembly adopted a resolution declaring that everyone has the right to a healthy environment. Allowing NGOs to challenge greenwashing without having to prove individual harm is therefore consistent with emerging international law and acknowledges the right of communities to actively participate in shaping policies related to climate change.

Environmental protection can be improved through more effective protection of consumer rights. Incorporating sustainability into consumer protection policy can promote economic and social development and environmental goals.

Consumer protection laws can empower consumers to make informed decisions and hold businesses accountable for the negative environmental impacts that may result from misleading claims, but their potential may be hindered by lack of awareness and procedural obstacles.

The research suggests that consumer law is more effective than administrative environmental law in addressing greenwashing. This is because consumer law is specifically designed to protect consumers from deceptive advertising, whereas administrative environmental law focuses primarily on regulating environmental impact. Consumer law offers legal protection and advantageous procedural rules to consumers who have been misled by greenwashing claims, and it can result in penalties for companies involved in such practices. In contrast, environmental law may not have the same extent of enforcement measures, and experts did not identify the legal possibility to tackle greenwashing through traditional environmental laws in most countries covered by the research. Furthermore, laws on access to environmental information are primarily directed towards public authorities and not corporations; therefore, their application is limited.

However, the study shows that the existing legal framework on consumer protection in several Member States addresses environmental harm only to a limited extent. Consumer protection laws should explicitly address the environmental impact of products and services in order to improve their effectiveness.

The research found that relevant legislation applicable to greenwashing in Member States covered by this study is the result of the EU acquis, in particular relating to unfair commercial practices.

The broad definition of commercial practices under the UCPD has made it possible to address greenwashing practices in several Member States, prior to the existence of EU and national legislation explicitly providing definitions of environmental claims.

The research found significant discrepancies between Member States in the application of the provisions on unfair commercial practices to greenwashing, not only with respect to the interpretation of specific terms but also as regards the existence of initiatives to challenge greenwashing at all. In some of the Member States, civil society has initiated a significant number of legal actions, while in others few if any cases have been brought based on these provisions.

Moreover, different approaches have emerged as to how the responsibility for the potentially misleading communication is assigned: courts in some Member States require companies to provide evidence for all aspects of environmental claims, while others find that consumers have a responsibility to research information and seek alternative sources before claiming to have been deceived.

Experts consulted in this research claimed that it is necessary to have more precise legislation at the EU level expressly addressing greenwashing and to provide clear criteria to be met by companies when making any kind of green statement.

The new EU legislative initiatives relating to green claims aim to address these gaps, establishing explicit rules on the admissibility and substantiation of sustainable performance claims.

In addition, the research shows that these proposals have triggered more detailed and targeted legislation in Member States or have already been invoked in successful court litigation. Thus, initiatives at the EU level can drive legislative reforms in Member States and help strengthen laws against greenwashing, even before final adoption.

The enforcement of consumer rights to combat greenwashing may be positively or negatively influenced by a variety of factors, such as dissuasiveness of sanctions, burden of proof and conditions for civil-society representation.

National authorities in individual countries are responsible for the enforcement of EU consumer protection laws. According to the UCPD, a Member State can decide whether these provisions will be enforced through judicial or administrative proceedings, and whether prior use of other avenues, such as codes of conduct, should be required. The current proliferation of regulations at the national and EU levels, while helpful, makes the legal landscape more complex and fragmented, rendering it potentially less effective or even counterproductive.

The research findings and the experts consulted for this study point to the fragmentation of the current supervisory system regarding issues such as misleading commercial practices or access to environmental information. In addition to instances of shared competence by administrative and judicial bodies, a number of experts highlighted the existence of multiple national authorities responsible for overseeing various consumer rights. This may lead to confusion among consumers about the respective competencies of supervisory bodies.

Furthermore, in some Member States the authorities can refuse to take any action when an alleged infringement is reported, and in some Member States consumers cannot appeal their decisions.

Consumer and environmental protection associations play an important role in empowering rights holders and protecting environmental interests. They do this by promoting transparency and accuracy in environmental marketing, advocating for stronger consumer protection laws, filing complaints on behalf of consumers or in the public interest and raising awareness among consumers. Furthermore, civil-society organisations bring expert knowledge about environmental issues, which judges may not possess, especially in cases where companies use scientific terms to promote their products.

The 2020 representative actions directive (RAD) allows consumers in the EU to protect their collective interests through legal action brought by representative ‘qualified entities’. The RAD distinguishes between domestic and cross-border representative actions, with different criteria for each, and Member States have more flexibility in setting criteria for qualified entities in domestic actions.

The research confirms that the legal standing of NGOs in litigation relating to consumer and environmental rights varies across Member States, which can make judicial procedures against multinational corporations more difficult.

In some Member States, NGOs are allowed to sue even if their rights or legal interests are not affected by the acts or omissions in question, while in other Member States legal action brought by an NGO based on its statutory objectives, such as environmental protection, may be considered inadmissible in litigation based on consumer rights, owing to lack of legal standing for such claims.

Environmental organisations are often barred from pursuing legal action in consumer affairs, where legal standing is reserved for qualified consumer organisations. Furthermore, in certain Member States, only nationally recognised NGOs have legal standing to file a legal action, even though the defendant may be a multinational corporation and the alleged environmental concerns span multiple countries and have been raised throughout the EU.

Consumers who are aware of greenwashing practices are more likely to make informed decisions and avoid products that are not environmentally friendly. This can lead to declines in sales and customer loyalty for companies that engage in greenwashing practices. In addition, consumers can alert market surveillance authorities and amplify the impact of awareness-raising campaigns, and also initiate litigation.

However, complaints and the decisions of administrative bodies are often not published, further hindering transparency and educational effect in this regard.

The research finds that raising awareness of greenwashing practices is primarily carried out by civil society organisations who often face significant resource constraints.

Raising awareness among consumers is essential to combat greenwashing practices and ensure that companies are held accountable for their environmental claims. In addition, Member States’ obligation to promote human rights includes ensuring that people are aware of their rights. Raising awareness is therefore another way to protect consumers and the environment through a human rights approach to climate protection.