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SHADES OF GREEN: LEGAL LANDSCAPE OF GREEN ADVERTISING AND GREENWASHING IN INDIA

INTRODUCTION

The advent of mass communication technologies has made it easier for brands to market their products to a wide range of consumers. Over time, new advertising strategies evolved. One such tactic is green advertising. It means to promote products or services with an emphasis on their positive environmental impact or sustainability practices. As more consumers become eco-conscious, brands align their marketing strategies with sustainable values. However, there is an increasing presence of brands that advertise their products as eco-friendly, whereas they are not. The practice is called greenwashing. So, is there any legal framework surrounding green advertising in India? If yes, does it prevent greenwashing? Let’s find out!

GREEN ADVERTISING VS GREENWASHING

As people become more aware of their environmental impact, environment-conscious consumers expect the products they use to be eco-friendly. Sustainable practices are becoming popular. Consumers wish the brands to care about the planet the way they do. That is why brands take measures to align their products with consumers’ planet-friendly wishes. They try to make sustainable products and advertise them likewise. That is called green advertising. It is a powerful term. According to a report, 66% of consumers would pay more for a product if the brand aligns with their values.

However, what if the green advertised product is not eco-friendly? What if the green claims of brands are inaccurate? If that is so, it will mislead consumers to buy the products believing that they are green. Such misleading advertisements take benefit of the changing consumer behaviour without justifying their claims. It has become increasingly ambiguous for consumers to distinguish between genuine and fake green products through greenwashed advertisements.

The European Commission reports that “53% of green claims give vague, misleading or unfounded information” and “40% of the claims have no supporting evidence.” Some claims are very broad, for instance, eco-friendly, carbon-neutral, and green; others seem sophisticated but lack clarity, for example, non-toxic, sustainable, natural, etc.

There is a plethora of greenwashed advertisements in the advertising world. For instance, in the year 2022, an NGO, Changing Markets Foundation exposed several brands that were greenwashing globally. Its report revealed that Coca-Cola, which spent so much money on advertising that some of its bottles are made of 25% marine plastic, failed to state that it is the largest plastic polluter in the world. Another brand, Unilever, introduced washing liquid pouches to replace its recyclable PET bottles. However, contrary to the bottles, the pouches are not recyclable. The whistle-blower NGO also revealed that the packaging of one of the clothes from SKIMS (Kim Kardashian’s clothing brand) claims ‘I AM NOT PLASTIC”, while a tiny print on it states that it is Low-Density Polyethylene. There are several other paradoxical claims too.

REGULATORY FRAMEWORK FOR GREEN ADVERTISING IN INDIA

Presently, India has no specific legal framework to regulate green advertising or greenwashing. However, a few provisions of the Consumer Protection Act of 2019 (hereafter referred to as ‘the Act’) indirectly govern greenwashing in India. Section 2(28) of the Act defines “misleading advertisements” as an advertisement which either:

  • Describes a product or service falsely;
  • Provides a false guarantee to, or is likely to mislead the consumers concerning the product or service’s nature, substance, quantity or quality;
  • Conveys an implied or express representation, which will constitute an unfair trade practice by the brand, or
  • Purposefully hides crucial information.

Section 10 of the Act established the Central Consumer Protection Authority (CCPA) as the Central Authority to regulate matters relating to misleading advertisements to protect consumers’ interests. CCPA consists of a Chief Commissioner and a few other Commissioner appointed by the Central Government. CCPA has the authority to inquire about any misleading advertisement on a suo motu basis or upon receiving any complaint. CCPA also has an Investigation Wing responsible for investigating matters under the Act.

Under Section 21 of the Act, upon inquiry or investigation, if CCPA finds that an advertisement is misleading or false, it may direct the brand, its endorser, the advertiser, or the publisher to discontinue or modify it. Additionally, CCPA can impose a penalty of up to INR 10,00,000/-. For every repeated contravention, the penalty may extend up to one INR 50,00,000/-.

Also, The Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements of 2022 (hereafter referred to as “the Guidelines”) issued by CCPA prohibits misleading advertisements. It also provides the conditions for non-misleading advertisements, which state that a valid advertisement should:

  • Contain genuine representation
  • Not exaggerate the accuracy, scientific validity, or practicality of the product or service;
  • Not present consumers’ rights as a characteristic attribute of the brand’s offer;
  • Not mislead concerning the scope of risk to consumers’ security if they don’t buy the advertised products, and
  • Not indicate that the affirmations made in the advertisement are globally agreed upon if there are substantial divisions of opinion regarding it.

The Advertising Standards Council of India (ASCI) also requires all advertisements to conform with its Code for Self-Regulation of Advertising Content in India (ASCI Code). It directs advertisements to be legal, decent, honest, truthful, and fairly competitive. ASCI also releases guidelines on misleading advertisements. It also receives and handles complaints concerning misleading advertisements. However, the ASCI Code and its guidelines do not generally have legal validity, as ASCI is an independent body, not a statutory body.

ENDORSER PENALTY

Endorsers of a misleading advertisement are also liable for endorsing it. Under Section 21(2) of the Act, CCPA can prohibit them from endorsing other products or services for a year. A penalty of up to INR 10,00,000/- can be imposed on them. For every repeated contravention, CCPA can extend the endorsement period for up to three years.

Further, the Guidelines state that the endorsement must show the genuine, reasonable endorser’s present opinion. It also requires the endorser to engage in the endorsement only after getting adequate information concerning the product/ service and ensuring that it is not deceptive.

LACK OF AND NEED FOR A SPECIFIC LEGAL FRAMEWORK

There is no specific statute in India to check if brands are making misleading claims about the eco-friendly values of their products or services. The Act and the Guidelines address the general misleading advertisements. However, green advertising and greenwashing are unique problems because it not only affects the interests and expectations of the eco-savvy consumers but also the environment.

False green claims coax consumers into buying their products or services by deceiving them that they are shopping guilt-freely. The COVID-19 pandemic made people realize the importance of going eco-friendly. In a post-pandemic survey, 35% of participants said they chose eco-friendly products to help the environment, while a whopping 81% of the participants stated that they expect brands to be environmentally conscious in their advertising. When such a large percentage of consumers believe their favourite brands are eco-conscious, brands should not capitalise on their positive beliefs. Brands must not feed on the dynamic mindsets of consumers.

Many brands offer to collect consumers’ old products and recycle them. It also comes with another offer that the consumers will get discounts on buying new products by giving their old products for recycling. That way, consumers are enticed into buying new products by making them think they are doing good to the planet. For instance, the clothing brand, H&M, offers to recycle consumers’ old clothes. However, who will check whether the collected products are recycled or they just end up in landfills? No one. There is no statutory authority in India to check whether the sustainability claims made by brands are true or sham. At a time when 81% of consumers read food labels only to see the price and expiry date, one can hardly expect eco-conscious consumers to check the truth behind green claims before buying the product. A fact-checking statutory watchdog is urgently needed to curb greenwashing advertisements in India. A legal body that fact-checks all green claims before it is advertised to the public is the need of the hour.

CONCLUSION

Green advertisements are trending across the globe. Through these advertisements, brands try to sell their products to eco-savvy consumers, claiming they are planet-conscious. However, such advertisements and claims are often lies. In other words, they are greenwashed advertisements. Brands try to capitalize on eco-friendly consumerism. Unfortunately, sustainable is an unregulated term. There is no statutory authority to fact-check the green claims of brands in India. The Consumer Protection Act of 2019 governs misleading advertisements. But it fails to specifically supervise the green claims that have an immense impact on the environment and consumers’ beliefs. The Advertising Standards Council of India is a self-regulatory body for advertisements. But it lacks statutory powers. India urgently needs a statutory body that fact-checks green advertisements before they are publicised. It requires a watchdog that checks whether brands and endorsers walk their talk. That way, India can save both the environment and consumers’ interests. 

Author(s) Name: G.B. Vishwa (SRM School of Law, Chengalpattu, Tamil Nadu)