This Article is written by Viswa Ganesh K, a Fourth- Year law student of the School of Excellence in Law

Abstract

Green washing has adverse effects on natural ecosystems that are false claim on eco-friendly purposively. Greens are the respiratory system of all human beings but sheen harms them. The environmental sustainability is the primary concern, which helps to maintain the moderate temperature, climate and monsoon. Climate change is the main problem arising in all the edges of the world. It is our duty that is bound in our constitution to protect the environment.

The UN and Government of India had made a sustainable goals and specific laws for the preservation of the environment and work hard to implement it. People believed that Greensheen and greenblushing become the two sides of the same coin. Globe is influenced with the concept of Corporate Greening is equivalent to the green products.

Now-a-days, consumers buy their products without aware of its false advertisement over its eco-friendly statements. In law, LET THE BUYER BE AWARE plays a prominent role. Educated people also fall upon its false claims and buy their products. The misleading marketing strategy leads to the greenhouse effect, global warming, and degradation of eco-systems. The green trademark paves the way for the increasing rate of green washing in the corporate sector.

The Doctrinal Research paper fill address the increase of green sheen and its reasons, Loopholes in the implementation of green washing laws and human carelessness in the protection of the environment and the possible ways to reduce the false claims on sheen across the world.

Keywords: Green, Eco-friendly, Sheen, Buyer, Environment, Green trademark.

Introduction

Green washing is happened due to the Urbanization of the Nation. Due to Urbanization, our country grows. But we also think about that “where is green India?" In a developing society, nobody took care about the environment. The people believe the false claims of green-friendly of the products published in the advertisements. We should remember one thing, “If we buy a green sheen product, it harms the life of bunch of trees.” In this 21st century, the people are educated and be aware of their daily products.

As we are citizen of India, we should have the responsibility to preserve our environment that is bound in our constitution. If we are thinking about green trademark, it improves the eco-friendly system. The consumers adopt these products as it was made for the harm-free natural system. Now-a-days, it has been transformed into the system of green sheen in the competitive market and it greatly hampers the sustainable goals over the natural environment.

The concept of Greenwashing has become increasingly relevant as more and more companies make environmental claims in their marketing materials. Consumer and environment systems are greatly affected by green sheen. The misleading marketing strategy leads to the greenhouse effect, global warming, and degradation of eco-systems.

Greensheen and Greenblushing become the two sides of the same coin. As consumers become more aware of environmental issues, they are increasingly sceptical of green claims and are demanding more transparency[1] and accountability from companies that market themselves as environment friendly.

Definition

The United Nations (Climate Change) defines, “Greenwashing is an obstacle to climate change, by misleading the people to believe that a company or other entity is doing more to protect the environment.”[2]

The European Union defines green trademark allow a company to appear “greener”, more environmentally friendly, in turn it can attract customers choices to reflect their values.[3]

Kinds of Greenwashing

The greenwashing is an emerging issue that overrules the air, water pollution, indirectly affects the ecosystems and the human life. Now-a-days, the greens are converted into term of fraud, corporate gain and the private profit. Further, it is categorised into:

1. Environmental imageries = Use simpler green images and packaging.

2. Misleading labels = self-created a product as 100% organic.

3. Hidden trade-offs = put up an act of being fake environment friendly.

Prevalence Of Greenwashing In India

The most of the companies invest their low-level of share of profit into the green marketing communications, to be perceived as eco-friendly and socially engaged. They are ready to advertise their products as green claims and increment their purchasing power in the consumer market. The reality behind the corporate environmentalism can be disappointing upon their false claims:

1. In 2020, the European Commission examine and identify that 42% cases of global corporations had deceptive green claims.[4]

2. An Advanced trends report in 2022[5] found that 43% of employees thought their company was greenwashing.

3. A study conducted by the Advertising Standard Council of India (ASCI) reported that 79% of green claims made by organisations were exaggerated.[6]

4. As per the findings of the YouGov market research study, 71% of the Indian consumers reported the incidents of greensheen.

Consequences Of Greenwashing in India

In the green nation, the climate change is caused by nature, but today it caused due to human errors. The natural life systems are greatly influenced by the human actions and errors. It made the nature as a human made system. It will revert back to us in the way of global warming, greenhouse gas and drastic change of climate.

On Consumers

The erosion of trust among the consumers and the enterprises is a major effect of greenwashing in the Indian society. The customers thought that the corporate made them as a foolish and publish a fraudulent advertisement upon its green sustainability. They lost their faith over the organic products made by the companies.

On Environment

Companies hinder the progress towards a more environmentally responsible economy. It made environmental degrading instead of using alternate eco-friendly practices by utilizing modern techniques. The false green statements of the products harm the sustainable goals adopted by the United Nations. It infringes the fundamental right of protection of environment over the individuals under the Magna Carta of India.[7]

Only 30-40% of the companies forcefully implement the Corporate Social Responsibility (CSR)[8] have concern over the green lives in the environment.

On Trademark

The number of companies use green labels in their products to increase their customers in the business environment. New regulations have been implemented in the trademark sector as to find out the greensheen and to provide eco-friendly market. The global market empowers the awareness of the greenery over the consumer to be aware of their purchasing products.

International Scope

The UN Secretary-General quoted that “We must have zero tolerance for net-zero greenwashing.” It is possible only when the countries had serious concern over their sustainability goals to preserve the green environment. The countries frame their own rules and regulations in order to restrict the greensheen products spread across the global market.

In this 21st century, the corporate firms gained its importance and caused ineffectiveness over its regulative policies.

A. United States

The Federal Trade Commission (FTC) has issued a green guide which provide guidelines for the environmental market claims. The companies must adhere to the guidelines in their advertisement upon the green claims over their products. It also prohibits the fraudulent usage of the terms like “eco-friendly” and “greenery” in the corporate firms.[9]

As per American law, green guide is legally enforceable but not legally binding. The FTC had the power to take legal action against the companies who made false green claims over their products.

B. European Union

The EU has draft and enforces the directives and schemes for the regulation of green trademark. The regulations made environmental claims as specific as well as verifiable in the global market.

a) Empowering Consumers Directive

The Consumer directive sets a bar to the Generic Environmental Claims such as “environmentally friendly, eco-friendly, bio-based, ecological, climate friendly, carbon friendly, energy efficient and biodegradable” that create the image of the sustainability of the nature upon the corporate manufactures. It aims to prevent the consumer purchasing power over unfair eco- friendly products. The primary applicability is upon the area of Business-to-Consumer (B2C) as well as Business-to-Business (B2B).

b) Green Claims Directive

The directive ensures the trustworthy, comparable, verifiable and green transition of the items purchased by the corporate customers. It is the part of the empowering consumer directive issued by the European Commission. The minimal essential for the substantiation and communication of the voluntary natural claim as well as labels used in the products are put-forth by the articles of the directive.

C. United Kingdom

The Govt of UK governs business-to-consumer advertising and marketing through Consumer Protection from Unfair Trading Regulation. The fifth and sixth regulation prohibits the false material information regarding the commercial products. The ASA (Advertising Standards Authority) in United Kingdom has issued guidelines for advertising the green claims over their products. The Committee of Advertising practice has published the guidelines for the advertising the claims of carbon neutral over their products.

The Guidance on Making Environmental Claims on Good and Services of 2021 laid down the six principles which helps to make the sustainability claims such as it must be truthful, accurate, unambiguous, fair and meaningful.[10] The CAP and BCAP code requires a solid evidential proof of green claims and made the company to explicit the environmental claims on the full lifecycle of the advertised product. Therefore, it doesn’t mislead the consumer claims over the green products.

D. Australia

An Australian Competition and Consumer Commission (ACCC) and Australian Association of National Advertisers (AANA) draft and enforce the environmental claim code for marketing communication. It also prohibits the misrepresentation in promoting goods and services under the schedule 2 of the Competition and Consumer Act, 2010. The Australian Consumer Law (ACL) prohibits the making of false or misleading representations and fraudulent conduct in trade. ACL will impose strict liability over the corporate firms and compensate the innocent consumer. The sustainability report consists of a climate statement and its notes, regulations and relevant sustainability standards has been prepared and issued by AAS board in each financial year.

Constitutional Provision to Preserve Environment in India

The Indian Constitution contains specific provisions for environmental protection under the chapters of Directive Principles of State Policy and Fundamental duties.

Article 48-A and 51-A Clause (g)

In the seventies, Stockholm conference and increasing awareness of the environmental crisis prompted the Indian government to enact 42nd amendment in the constitution in 1976. This 42nd amendment added Article 48-A to the Directive Principles of State Policy is the direct provisions for the protection of environment.

The Article 51-A (g) deals with the fundamental duty of the citizen to protect and improve the natural environment.[11]

Legislative Scope

On June 5 every year, we celebrate “World Environment Day” is an occasion to celebrate the ecosystems and humanities achievements in preservation of it, to educate the public on natural beings and claims. The UN Environment programme has setup a theme of “Our land, Our future,” aims to focuses on land restoration, desertification and drought resilience. The kingdom of Saudi Arabia will host the Global Environment Day celebrations and create awareness about the eminence of ecosystems in the year of 2024.[12]

The Consumer Protection Act, 2019

Company will be liable to its misleading advertisement with regard to its green claims in their products. A Statute provides a right to redress against unfair trade practices, indirectly means the greenwashing occurred. The Act consists of company’s liability as well as buyer’s liabilities such as LET THE BUYER BE AWARE of purchasing products in the competitive market. It is in adherence with the maxim “law does not help the people who is sleeping over the exercising of their rights.”

The Environment Protection Act, 1986

The legislative compendium is created after the Bhopal gas tragedy, aims to preserve the environment as pollution free as well as sustainable. It allows the central government to lay down procedures and safeguards for the handling of hazardous substances. The violation of these provisions will cause liability over the companies which can lead to penalty. These statutes form the backbone of India’s environmental sustainability, indirectly govern and regulate the greensheen of corporate products.

Regulations

SEBI Circulars

The greenwashing defined in the circular issued by the Securities Board of India (SEBI) on 3rd February, 2023. The Indian Regulatory Board mandates in the circular that highlights the need for issuers of green debt securities must adhere to the guidelines to avoid the incident of greensheen.

The Adopted Definition of Greenwashing is:

“Making false, misleading, unsubstantiated, or otherwise incomplete claims about the sustainability of a product, service, or, business operation.”

The third-party entity provides the certificate over misleading labels, selective data presentation, and false claim are prohibited under the SEBI circular. The standards and procedures are well-established.[13] Therefore, it is a stepping stone addresses the issues of green washing and to provide the guidelines for companies to achieve its CSR goals with the sustainable environment.

Bureau of Indian Standards Act, 2016

The Bureau of Indian Standards draft and implement the standards of products, processes and services in the nation. It establishes an “Eco-mark scheme” which aims to develop the standards for eco-labelling of products and services.

Eco Mark Scheme

The scheme set-out the standard and criteria for the use of eco-labels and provides guidelines for corporate making environmental claims in their product and its advertisement. It explains the system of eco-labelling and its requirements. As per the provisions of BSI Act of 2016, the list of products such as soaps, detergents, paints and food product are covered under the scheme.

Advertising Standards Council of India

The statutory regulating body that monitors and regulates advertising practices in India. ASCI have adopted the strict principles and ethical guidelines for the enhancement of truthfulness in the advertisement published by the advertising agencies. The Chapter I of the self-regulatory code states that, “Advertisements shall neither distort facts nor mislead the consumer by means of implications or omissions.”

The statement and pictorial representation in the advertisement should not mislead the consumer about its context and greenery claims. In 2017, the Muktha Laboratories pvt. Ltd. made an advertisement of mosquito repellent as a “World’s first non-toxic and eco-friendly” was upheld.[14]

Role Of Technologies In Greenwashing

A digital platform such as website, internet source, and mobile apps paves the way for the decrement of value of greensheen in the market. It aims to identify and restrict the usage of greensheen. The machine learning algorithms can be trained to identify keywords and phrases associated with greensheen and used for investigation purposes. Technology must be utilized by the companies as well as regulating agencies in order to achieve a sustainable goal in the world environment.

The real-world examples are:

1. Clearcut App, which utilizes artificial intelligence to deeply scrutinize and identify greensheen claims.

2. EcoVadis platform, which uses technology and data analysis to assess the environmental performance and sustainability of companies.

3. GoodOnYou app, which provides ratings and information on the ethical practices of fashion brands.

In addition, the data analytics and AI can be employed to detect patterns and inconsistencies in sustainability claims. The blockchain technology can be used to create a transparent and secure system for tracking the environmental impact of products and services throughout its lifecycle. Consumer and companies will be aware of these advancements and utilize them as to ensure their welfare.

Judiciary Scope

The Smith V. Keurig is a settled caselaw, the defendant made the breach of express warranty, unjust enrichment and misrepresentation of K-Cup coffee pods in the market. It also breaches the provisions of the California Consumer Legal Remedies Act (CLRA) and Unfair Competition Law (UCL). The California Court adjudicates the greensheen litigation with the settlement of $10 million settlement, a settled case in the record of the courts in the world.

As per Climate change database litigation of May 2023, nearly two-thousand climate change litigation filed in the world. In the research conducted by the Sabin Centre for Climate Change conducted, classified the litigation of greensheen into ambitious corporate commitments, misrepresentations about the environmental or climate-friendly attributes of the products and the deceptive disclosure of climate change risks.

The MC Mehta V. Union of India is the landmark case insisted the environmental protection as a sustainable one. The Right against adverse effects of climate change recognised as a fundamental right under the part III of the Constitution of India held in the case of Ranjit Singh V. Union of India.

The Court held in Natures Essence Private Limited V. Protogreen Retail Solutions Private Limited, that the companies using the name of “nature’s tattva” infringed the trademark “Nature’s Inc” even though they were dealing in different product, although the category of products was the same.[15]

Conclusion

The Green trademark is the rising star of the world market. Also, the greenwashing is an emerging issue that overrules the air, water pollution in the rate causation of environmental degradation. It indirectly affects the ecosystems and the Human life. India visions for the status of green nation. Now-a-days, the greens are converted into terms of fraud, corporate gain and the private profit.

Climate change is caused by nature, but today it caused due to human errors. The natural life systems are greatly influenced by the human actions and errors. It made the nature as a human made system. It will revert back to us in the way of global warming, greenhouse gas and drastic change of climate.

The judiciary is a vital mechanism, helps to tackle the greensheen in the products. It also comes forward to encourage and join hand with the NGOs and other organisation to promote the awareness of greensheen and environmental sustainability in the society. We the people of India, made ourselves aware of the governmental laws related to the greenwashing and participate in the green initiatives in order to achieve the sustainability goal of environment in the world.

References:

[1] Manoj Sonwals, ACS, Green Washing and Green Blushing, (Chartered Secretary, Manoyog GRC Advisors Private Limited, UK) 34-38

[2] United Nations, www.un.org/en/climatechange accessed 07 September 2024.

[3] European Innovation Council and SMEs Executive Agency, Green trademarks, ( European Commission, EU). 110-112.

[4] European Commission, https://commission.europa.eu accessed 07 September 2024.

[5] Vikrant Rana, Greenwashing: An overview, (Mondaq publications, New Delhi) 112-115.

[6] The Advertising Standards Council of India, https://www.ascionline.in accessed 08 September 2024

[7] Art 21, Constitution of India, 1950.

[8] Maria Sanz-Navarro, Effects of Greenwashing on Consumer Perception, (Bachelor’s Thesis, Haaga-Helia University of Applied Science) 20-25.

[9] More P V, The impact of Greenwashing on Green Brand Trust from an Indian Perspective, (Asian Journal of Innovation & policy, 2019) 110-118.

[10] Delmas, M A and Burbano V C, The drivers of greenwashing, (California Management Review, 2011) 225-250.

[11] M.P. Jain, Constitution of India, (lexis Nexis publication, Haryana, India.) 75-78

[12] World Environment Day, www.worldenvironmentday.global accessed 09 September 2024.

[13] Kalee, Greenwashing and its impact on Consumers and Businesses – A Review, (Indian Journal of Natural Sciences, 2020) 346-350.

[14] The Advertising Standards Council of India, www.ascionline.in accessed 10 September 2024.

[15] Green trademark in India, www.mondaq.com/india/trademark accessed 10 September 2024.