In a noted case between the Consumer Ombudsman and Arla Foods AB (the Patent and Market Court's judgement of 2 February 2022 in case no. PMT 17372-21), the Patent and Market Court considered that the use of the statement ”net-zero climate impact” on milk cartons was misleading and gave the impression that the dairy products did not produce any climate impact at all.
Arla had used the expression on the milk cartons throughout its Arla Ko Eko range. The Consumer Ombudsman claimed in the case that the marketing was misleading and in contravention of good marketing practice. The Patent and Market Court shared the Consumer Ombudsman's opinion and observed, among other things, that the average consumer cannot be expected to understand that the promised effect – ”net-zero climate impact” – was achieved using carbon offsetting activities that would not be able to compensate for the climate impact to which the milk production gave rise for 100 years after the emissions had taken place.
According to the Patent and Market Court, a cursory reading would not enable the average consumer to interpret the statement in any other way than that the relevant product does not affect the climate at all or at any rate that the climate impact that the product causes has been fully compensated. Further, the Patent and Market Court observed that it is not possible to draw any certain conclusions that the results will actually be achieved after 100 years. To sum up, Arla therefore did not succeed in adequately demonstrating that its marketing was valid.
According to the Marketing Act, a business must not utilise inaccurate statements or other representations in its marketing that are misleading in relation to the business's activities. It applies to specific representations that concern the product's quality and other distinctive features, as well as the product's use and risks such as the impact on health and the environment. Those who market a product or a service must be able to prove that the statements made in the marketing are valid, truthful, correct and clear.
The Patent and Market Court's judgement illustrates the challenges in correctly formulating the marketing of environmental benefits, and that it can be particularly difficult to clearly present the climate impact for a particular product. A reference to, for example, ”climate neutrality” or ”net zero climate impact” through so-called emissions trading can be misleading if the effects only arise after a long time and this is not presented clearly.
In this article (in Swedish), Lindahl has summarised some general advice that is worth taking into account if you are considering utilising environmental statements in your marketing.
Do not hesitate to contact our experts within marketing law in connection with more specific issues and for help with review and advice surrounding your marketing.