EU Commission publishes FAQ on the EmpCo Directive

Directive (EU) 2024/825 on empowering consumers towards a green transition (Empowering Consumers or "EmpCo Directive") will come into force on September 27, 2026, and will bring about significant changes for advertising with environmental claims. While the Bundestag and Bundesrat in Berlin are debating the Third Act Amending the UWG (Unfair Competition Act) to transpose the EmpCo Directive into German law, the EU Commission has now answered key questions from companies on the application of the directive in an FAQ. In some cases, the recitals are explained, while in others, specific questions of application are clarified.

Right at the outset, the Commission addresses the scope of the directive. It covers all business practices in the B2C sector (read more on this topic here), i.e., any action, omission, or communication directly related to the advertising, sale, or delivery of a product to consumers.

"Implied" environmental claims

The use of general environmental claims is prohibited under the Directive. Until now, there has been uncertainty as to whether implicit claims, such as the use of certain colors, can also be considered environmental claims. The Commission clarifies that purely implicit elements such as colors or images without text do not in themselves constitute general environmental claims. However, when combined with written or verbal statements, they may constitute a general environmental claim. Certain visual elements, such as green leaves, water droplets, or nature-related symbols, may be perceived by the average consumer as implicit environmental claims. In combination with textual statements or logos, they may be subject to the requirements of the EmpCo Directive on general environmental claims.

Such visual design elements can also be perceived by the average consumer as a voluntary quality seal, especially when placed next to statements on sustainability. They then fall under the broad term of sustainability seal, with the result that the strict requirements for sustainability seals apply.

Environmental statements in sustainability reports

As the Commission clarifies, sustainability reports as required by the CSRD do not typically fall under the Directive, as they are usually mandatory and addressed to investors. However, if environmental statements from these reports are voluntarily used in advertising aimed at consumers, they are subject to the provisions of the EmpCo Directive.

Interplay between the EmpCo Directive and intellectual property

The relationship between the directive and intellectual property law is also addressed. In the Commission's view, labels, brand names, company names, and product names are covered by the directive regardless of whether they are protected by trademark law and must therefore meet the requirements for general environmental claims and sustainability labels. This applies in particular to brand or product names containing terms such as "green," "eco," or "climate neutral." If such a name proves to be misleading or a general environmental claim, the Commission believes that registration as a trademark may be refused on the grounds of infringement of unfair competition law.

Advertising with terms such as "organic" or “vegan”

For terms such as "organic" and "eco," which relate to the ecological/biological production of food, the Commission refers to sector-specific regulations (such as Regulation (EU) 2018/8489). These take precedence over the EmpCo Directive as more specific regulations. In these constellations, the EmpCo Directive therefore does not apply.

In contrast, the terms "vegan" and "vegetarian" depend on the context. If their use suggests an ecological or social advantage, this may constitute an environmental claim or a sustainability label, in which case the provisions of the EmpCo Directive apply.

Sustainability labels

With regard to sustainability labels, the Commission clarifies that such labels must either be established by a government agency of an EU member state or be based on a certification system. The use of sustainability labels established exclusively by a government agency of a non-EU country is therefore not permitted unless they are based on a certification system. In addition, the label holder and the independent body that verifies compliance with the label criteria must be different legal entities.

Advertising with social aspects

The discussion on the EmpCo Directive often focuses on environmental aspects. However, the directive also contains provisions on advertising with social characteristics of products, such as the payment of fair wages or social protection along the value chain. "Social characteristics" are now explicitly named as an essential product feature in the context of misleading business practices; misleading statements in this regard are explicitly prohibited.

Labels that refer to social characteristics also fall under the term "sustainability label" and must meet the same requirements as environmental labels.

Implementation deadline and existing products

Finally, the Commission comments on how to deal with products already on the market. Member States must implement the directive by March 26, 2026; it will apply from September 27, 2026. From that date, companies must comply with the requirements, including for existing products. No additional transition period is planned. Companies should therefore adapt their products and advertising in a timely manner and, if necessary, comply with the requirements of the directive by applying labels or providing additional information.