New Rules for Green Claims in Advertising

22. January 2025

Intellectual Property (IP), Marketing & Competition

Advertising law update: Since January 1, 2025, advertisers must be able to prove statements regarding the climate impact caused. Otherwise, the information is considered unfair, is (civil) legally contestable and punishable ( Art. 3 Abs. 1 lit. x nUWG ).

As part of the revision of the CO2 Act, various decrees were amended – and the aforementioned new article in the UWG (the Federal Act against Unfair Competition) was inserted:

“In particular, anyone who […] makes statements about themselves, their goods, works or services in relation to the climate impact caused that cannot be substantiated by objective and verifiable bases acts unfairly.”

What Applies to Climate Statements in Advertising?

Even up to now, false or misleading statements in advertising were considered unfair and were legally contestable (especially Art. 3 para. 1 lit. b UWG). What is new is that it is more clearly anchored at the legal level that blanket statements on climate impacts must be used with caution: When using absolute statements such as “CO2 neutral”, “CO2free”, quantitative targets or the use of labels, the statement must be verifiable for the entire advertised offer.

The self-regulation of the advertising industry has long placed specific requirements on advertising with climate statements. In its guideline on commercial communication with environmental relevance, the Swiss Commission for Fairness SLK (the self-regulatory body of the Swiss advertising industry) specified the requirements for the use of certain climate arguments in advertising in 2023:

Statements such as “CO2-neutral”, “CO2-friendly”, “CO2-free” refer to the complete avoidance of emissions or complete compensation of the greenhouse gas carbon dioxide or carbon dioxide;
“CO2-positive” means overcompensation (compensating for more CO2 than emitting);
Statements such as “greenhouse gas-neutral”, “without greenhouse gases” aim at measures for the complete avoidance of emissions or complete compensation of all greenhouse gases (in addition to CO2, also nitrogen oxides, methane, nitrous oxide, F-gases);
Terms such as “climate-neutral”, “climate-positive”, “climate-friendly”, “ecologically safe”, “green” etc. also refer (!) to measures to neutralize all negative influences of a product or company on climate change.

The burden of proof lies with the advertiser: Anyone who uses a corresponding claim must be able to demonstrate its accuracy. By mid-2025, the Federal Office for the Environment (FOEN) is expected to provide enforcement assistance to help advertisers communicate in accordance with the new UWG provision (based on Art. 39 Abs. 4bis CO2-Gesetz ). The legal applications of the various authorities should also be standardized by the enforcement aid. Until then, advertisers should initially refer to the existing SLK guidelines for evidence of their advertising statements: As part of self-regulation, “plausible and comprehensible calculations made according to generally accepted and recognized methods” are already required as proof ( Ziff. 12 Richtlinie Umweltbezug ). The effectiveness of compensation measures must be made credible and any certificates must be presented.

What are the Risks?

Decisions on climate-related advertising statements in Switzerland have so far been made primarily under self-regulation (primarily by the SLK): A violation of the self-regulation guidelines can be complained about before the SLK. However, the SLK can ultimately only issue recommendations and, if they are not complied with, publish their decisions, naming names. Recommendations from the SLK have a reputational impact – especially in areas such as ecological sustainability advertising, which generate a certain amount of media interest. The complaints in this area have increased in recent years.

Under the new UWG article, the number of legally prosecuted cases in Switzerland will probably increase. Customers and competitors can now also take action against allegedly false or misleading statements in civil proceedings or by means of a criminal complaint (or criminal complaint). In the event of violations of the advertising regulations, civil law in particular (precautionary) prohibitions and claims for damages are conceivable. In criminal law, intentional commission is threatened with imprisonment of up to three years or a fine (theoretically up to CHF 540,000).

What Applies to other Environmental Statements?

The SLK also sets requirements for advertising with other green claims, i.e. environmental arguments even without a climate reference (Environmental Reference Guideline): For example, when using terms such as “sustainable”, “environmentally friendly” etc. in advertising, the corresponding measures must go beyond the legal or industry-internal requirements.

The regulations on information obligations and labeling in the area of ecological sustainability of an offer – not only with regard to climate protection – will increase: For example, the Federal Council can in future set requirements for uniform, comparable, visible and understandable labeling of and information about products and packaging, which are based on the environmental impact caused by products and packaging (not only CO2 emissions) (Art. 35i Abs. 1 lit. d nUSG ). The details of these are to be regulated at ordinance level. When defining the labeling rules, the Federal Council must (at least) take into account the rules of the EU, as the most important trading partner ( Art. 35i Abs. 2 nUSG ).

Are there Special Rules for Certain Industries?

Special provisions apply to certain offers for advertising with ecological sustainability arguments:

Complete ban on advertising the commitment to ecological concerns: Since there is no factual connection to the product, spirits advertising may not refer to the provider’s commitment to social and ecological concerns as well as animal welfare programs or similar at all (new guideline for alcohol advertising, no. 8.1.8).
Self-regulation of the Swiss financial sector: Since 2023 (with transitional periods for implementation until January 1, 2027), there have been (new) self-regulatory requirements for the definition of sustainable investment goals, the description of the sustainability approaches used, the accountability and the review of the implementation by an independent third party. The federal government is therefore initially refraining from legal regulation against greenwashing in the financial sector.
Climate reporting: In a broader sense, business communication also includes the reporting on the risk of climate change and its own climate impact of large Swiss companies, which has been binding since January 1, 2024.

And What Applies Abroad?

The EU is also increasing the requirements for (voluntary) information on the environmental characteristics of products and companies. With the “Empowering Consumers”-Directive (“Directive on empowering consumers for the green transition through better protection against unfair practices and through better information”, EU/2024/825 short: “ECD”), “general environmental statements” for which a “recognized outstanding environmental performance” cannot be proven are prohibited (at least in communication with consumers). This includes a number of blanket terms such as “environmentally friendly”, “environmentally friendly”, “green”, “nature-friendly”, “ecological”, “environmentally sound”, “climate-friendly”, “environmentally compatible”, “CO2-friendly”, “energy-efficient”, “biodegradable”, “bio-based” etc. Sustainability labels can help to justify environmental claims, but the certifications must meet strict requirements.

The rules of the ECD must be implemented in national law in the member states and will be effective from September 27, 2027. Depending on the pace of the member states, corresponding national regulations may take effect in the individual EU countries earlier.

In addition to the ECD, the “Green Claims Directive” (“Directive on Environmental Claims” short: “GCD”) is currently being drawn up in the EU, which further specifies requirements for the traceability of environmental claims and the use of sustainability labels. Above all, statements on the “compensation” of certain environmentally harmful effects are coming under pressure. Advertisers will have to check in advance whether they can prove planned sustainability statements. Certification systems must meet (even) stricter requirements.

Some EU member states (e.g. France) already have specific requirements for environmental advertising.

In the event of violations of the EU regulations, fines of up to 4 percent of annual turnover, sales bans and confiscation of income or exclusion from public contracts for up to 12 months may be imposed. Competitors can also take action against this (e.g. with warnings, lawsuits).

Swiss advertisers with a focus on the EU market must also comply with the EU rules. Even Swiss companies that are only suppliers must expect their customers to ask more binding questions and demand proof of environmental claims. The EU and Swiss rules thus mean more responsibility along the entire supply chain.

We are happy to advise you on the possibilities and limits of sustainability advertising and on advertising law in general for various offers and industries.

This article is part of a series of updates and developments in advertising law: