BIOCIDES
follow them , the ultimate test remains compliance with the legal provisions of the BPR . Whether or not this new guidance meets this threshold will be tested as companies exercise their right to challenge decisions forcing them to abandon trade names that should not be considered misleading .
Wider initiatives at EU level
The above activities by the EC and the CAs for biocidal products are consistent with the EU ’ s wider policy agenda to address concerns with misleading ‘ green ’ and environmental claims . The EC has published a proposal for a dedicated directive on substantiation and communication of explicit environmental claims . 5
This directive would regulate voluntary environmental / green claims ( i . e . claims not covered by other existing EU legislation ) formulated in business-to-consumer commercial practices . It could cover claims made in relation to biocidal products that are not covered by the BPR rules described above , so that it is important for companies keep abreast of this proposed new legislation .
Under this proposal , any voluntary environmental claims made will have to be substantiated , verified by a third party and communicated together
References 1 : Cases T-586 / 08 Kerma v OHIM ( Biopietra ), paragraph 25 ; T-427 / 11 Laboratoire Bioderma v OHIM Cabinet Continental ( Bioderma ), paragraphs 45 and 46 ; T-568 / 14 Laverana v OHIM ( Bio Fluide de Plante Propre Fabrication ), paragraph 17 2 : Case T-86 / 19 SolNova v EUIPO , paragraph 83
3 : Case C-147 / 21 CIHEF and Others at paragraphs 65 & 67 4 : CA-June23-Doc . 4.9 . rev1 : https :// circabc . europa . eu / ui / group / e947a950-8032-4df9- a3f0-f61eefd3d81b / library / 35c87fa9-6c5e- 457a-9587-e78be0fdf221 / details .
with information on the substantiation , in physical form , on a website or via a QR code . Self-certification will no longer be accepted .
Furthermore , the directive will require the MSs to ensure that national legal systems allow natural or legal persons or organisations to make substantiated complaints and challenge any decision before the courts or other independent public body . In other words , companies will not only face enforcement from CAs but may find themselves defending their ‘ green ’ and environmental claims in proceedings initiated by private parties .
Some of the anti-greenwashing principles contained in the above proposed directive have already received political endorsement as part of the directive on empowering consumers for the green transition . 6
The European Parliament and Council have agreed to update the Unfair Commercial Practices Directive ( 2005 / 29 / EC ) and the Consumer Rights Directive ( 2011 / 83 / EU ), so that , for example , climate-related claims based solely on carbon offsetting schemes or on unverified carbon offsetting schemes will be prohibited .
The companies will also be prevented from using general
5 : https :// eur-lex . europa . eu / legal-content / EN / TXT / 6 : https :// www . consilium . europa . eu / en / press / press-releases / 2023 / 09 / 19 / council-and-parliament-reach-provisionalagreement-to-empower-consumers-for-thegreen-transition /. statements such as ‘ biodegradable ,’ ‘ eco-friendly ’, ‘ sustainable ’ or ‘ green ’ if those statements are not substantiated and supported by evidence made publicly available .
Conclusion
The limitations on the use of green claims in relation to biocidal products do not end at ensuring compliance with the provisions of the BPR . Companies need to assess all aspects of the biocidal product label and advertising material , including trade names . The biocides sector is not alone in this , as the EU pushes for harsher rules on the use of green claims across the board . ●
Eléonore Mullier
PARTNER
STEPTOE & JOHNSON LLP k + 32 2 626 0563 J emullier @ steptoe . com j www . steptoe . com
44 SPECIALITY CHEMICALS MAGAZINE ESTABLISHED 1981