Tightening of standards for climate-related advertising – HelloFresh judgement

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published on 18 October 2023 | reading time approx. 3 minutes


In its most recent “climate”-ruling of 10 October 2023 (102 0 15/23, DUH ./. HelloFresh) the Berlin Regional Court (Landgericht Berlin) ruled on the requirements for climate neutrality through forest protection projects as well as clarification and information obligations regarding climate protection projects and their standards. The Berlin-based cooking box provider HelloFresh advertised on its website with the statements – “The first global climate-neutral cooking box company” and “We offset 100 % of our direct CO₂ emissions”. (“Das erste globale klimaneutrale Kochbox-Unternehmen“ und „Wir kompensieren 100 % unserer direkten CO₂-Emissionen“).
 
 
On the subpage on “climate neutrality” HelloFresh explained that it offsets its direct CO₂ emissions by investing in “green initiatives” through its “partners”. Furthermore, HelloFresh described in detail the compensation projects – CO2 certificates from a forest protection project in Kenya with a term until 2034, from a climate protection project in the Netherlands assessed according to the "Verified Carbon Standard" (VCS) and from a waste project in Nepal without further details on the standards used. 
  
The plaintiff, Deutsche Umwelthilfe (DUH), accused HelloFresh of actively misleading consumers about the company's alleged climate neutrality through the projects, specifically the forest protection project in Kenya, § 5 UWG, and of omitting key information, important for the consumer, about the extent of the advertised emissions or emission offsets, the details of the certification standards and other crucial information, § 5a UWG.
  
The action was preceded by a warning notice from DUH against HelloFresh. The Berlin Regional Court fully upheld the action of DUH to cease and desist from making the climate and compensation-related statements and to pay the warning costs and imposed a fine of up to 250,000 Euro for each case of infringement. 
  

Misleading by deception about compensation through forest protection project, § 5 UWG

The Berlin Regional Court ruled that it was indisputable that the global protection of forests is in principle an important contribution to climate protection. However, this alone did not justify advertising a product or company as “climate neutral” by purchasing greenhouse gas compensation certificates. The claim of complete climate neutrality would in any case go beyond what could be achieved in the short term through CO₂ certificates from forest protection/reforestation projects. Furthermore, the advertiser should not blindly rely on the information provided by the certificate issuer, but should verify the claimed compensation successes of the project himself.
  
As long as there were no generally recognized standards in this regard, doubts as to whether the emissions incurred were actually offset would have to be at the expense of the advertising company. This is especially true if the claim refers to “climate neutrality” without any restriction. In the present case, however, complete compensation could not be guaranteed precisely because of the short duration of the specific Kenya forest project.
  
It also pointed out that a confirmation of the eco life cycle assessment by an independent service provider was irrelevant for the environmental advertising. This assessment only referred to the company's own emissions calculation, not to the validity of the selected CO₂ offset and its details. 
  
However, the Berlin Regional Court expressly left open whether forest protection projects are generally suitable for offsetting CO₂ emissions or not.
  

Misleading by omission of clarification and information, § 5a UWG

With regard to the duties of clarification and information, the LG Berlin stated that in view of the considerably positive connotation of the statement “climate neutral” for the consumer, who gets the feeling that he is “doing something good for the environment” by using the HelloFresh product/service, it cannot be sufficient if HelloFresh only provides rudimentary information on how it comes to the statement “climate neutral”.
  
In principle, the consumer knows that a balanced carbon footprint can be achieved both through self-reduction and through certificates or support of third-party projects. However, consumers do not usually assume that climate neutrality is based exclusively on purchased certificates and/or third-party projects. In contrast to one's own efforts to save, from the consumer's point of view these are always potentially suspected of “greenwashing”. Consumers therefore have a considerable interest in clarification and information regarding the details of achieving climate neutrality. 
  
In the present case, the statement that HelloFresh was the world's first “global climate-neutral cooking box company” was already restricted by the addition that the statement only referred to the “direct CO₂ emissions”.  The mere reference to the “Verified Carbon Standard” in the case of projects without further explanations posed the risk that the interested consumer would be impressed by the mention of such “buzzwords” and come to the conclusion that the claimed climate neutrality was based on a generally recognized objective, scientific basis. Insofar as HelloFresh specifically promoted the projects in Nepal and the Netherlands, the company should also have provided concrete information on how these specifically contribute to “climate neutrality”. Furthermore, the service provider responsible for the offset projects was not disclosed, so that it remained unclear to the consumer what requirements the service provider places on the climate protection measures underlying its certificates.
  

Conclusion: Tightening the standards for environmental advertising – “substantiation” and “actuality”.

HelloFresh became a “victim” of its own "good intentions" here. The Berlin Regional Court has stated in several places that if a company advertises with concrete climate protection projects and thus also claims a higher “tangibility” and emotionality of its climate protection efforts, then it can also be expected that it deals with the specific climate protection or compensation concepts behind them and informs about them in detail and does not limit itself to the mere acquisition of CO2 certificates. Of course, the latter remains a compensation option in principle, but then with limited advertising effectiveness. 
  
Thus, the already high standards for environment-related advertising claims (strong emotional advertising power, complexity of environmental protection issues, usually only a low level of factual knowledge of the general public about the scientific interrelationships and interactions) were supplemented and tightened by the Berlin Regional Court by the factor of “substantiation”. The more specific the advertising, the more detailed and substantiated the obligations to clarify and inform. According to the Berlin Regional Court, this is further increased by the “actuality” of the issue of “climate protection” and “climate change” in general consumer awareness. 
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