Eléonore Mullier and Zanda Romata of Steptoe & Johnson describe recent developments regarding potentially misleading terms under the Biocidal Products Regulation and how these fit within a wider trend against greenwashing in the EU
Green claims under the BPR & beyond
Eléonore Mullier and Zanda Romata of Steptoe & Johnson describe recent developments regarding potentially misleading terms under the Biocidal Products Regulation and how these fit within a wider trend against greenwashing in the EU
The labelling and advertising of biocidal products in the EU are regulated by the Biocidal Products Regulation ( BPR ). Holders of biocidal product authorisations and advertisers must ensure that labels and advertisements are not misleading in respect of the risks to human health , animal health or the environment arising from biocidal products , as well as their efficacy .
Articles 69 ( 2 ) and 72 ( 3 ) of the BPR specify that labels and advertisements for a biocidal product are prohibited from using indications such as ‘ low-risk biocidal product ’, ‘ non-toxic ’, ‘ harmless ’, ‘ natural ’, ‘ environmentally friendly ’, ‘ animal friendly ’ or similar indications . These legal requirements have been further interpreted – and expanded – by the European Courts and , more recently , by the European Commission ( EC ), together with the Member State Competent Authorities ( MSCAs ) for biocidal products .
Guidance from EU courts
The General Court of the European Union has ruled on several occasions that the prefix or suffix ‘ bio ’ is generally associated as referring to :
• The idea of environmental protection ;
• The use of natural materials ; or
• Ecological manufacturing process1 Based on the ‘ highly suggestive ’ connotation of this term , the General Court has previously held that the presence of the word ‘ bio ’ on a biocidal product suffices to establish a sufficiently serious risk that consumers will be deceived . 2 While the ruling was given in relation to the relevant provisions of legislation on trade marks , it sent a strong signal for the labelling of products , including ‘ biocides ’ under the BPR .
The Court of Justice of the European Union ( CJEU ) further confirmed that the BPR seeks to regulate , in a detailed and comprehensive manner , the wording of statements on the risks of using biocidal products that may appear in advertisements for those products . The CJEU noted that , unlike where they are aimed at professionals , advertising of biocidal products to the general public is not exhaustively regulated by the BPR . Accordingly , member states ( MSs ) can introduce national legislation prohibiting the advertising of biocidal products to the general public provided that :
• Legislation is justified by objectives of protection of the health and life of humans and of the environment ;
• It is suitable for securing the attainment of those objectives ; and
• It does not go beyond what is necessary in order to attain them3 This ruling came in the context of a legal challenge brought by industry against two French decrees adopted under the so-called ‘ Egalim ’ Act .
One introduced a prohibition on applying discounts , price reductions , rebates and similar
42 SPECIALITY CHEMICALS MAGAZINE ESTABLISHED 1981