On October 15, 2014 the Swedish Market Court (MD) challenged an energy company's green claims and marketing activities after they had been challenged by a competitor1.
The challenged marketing included:
- a TV commercial which included a mother and her baby, clips of various natural disasters and the words "Not changed to solar energy yet?" and "Make a difference now.";
- an ad showing five dirty envelopes, perceived as being sent by five competitors, addressed to "Coal Street" or "Dirty Lane" as well as a white and shiny envelope from the advertiser addressed to "Fossil Street". Additionally, the ad stated that "Now all our customers gets sun";
- a claim that "while our competitors continue selling dirty coal power we are first in Sweden to provide our customers with solar power in their energy mix"; and
- a claim that "our competitors have coal power but we provide solar power to all our customers! Get clean power here!"
The MD found that the TV commercial 1) was designed to cause fear for the environment and climate. This was considered to play on consumers' feelings without any justifiable reason in a way that breached the Swedish Marketing Practices Act (MPA).
According to the MD the ad including the dirty envelopes 2) gave consumers the impression that energy produced by the competitors, in contrast to the advertiser's energy, had a negative impact on the environment. Since the claim could not be substantiated it was misleading and in breach of the MPA.
Regarding claim 3) the MD initially established that the advertiser had not substantiated that the advertiser was the first one in Sweden to provide solar power. This claim was also misleading accordingly. The claim that the competitors sold dirty coal power was considered both discrediting and an unfair comparison in violation of the MPA.
Finally, the fourth claim 4) was considered to create the impression that the advertiser provided "clean energy" (solar power), but that the competitors provided "dirty energy" (coal power). Given that only a small part of the energy provided by the advertiser came from solar power the claim was misleading.
In light of the foregoing assessments the MD ordered the advertiser to cease using the marketing subject to a conditional fine of SEK 1,000,000. The case illustrates that green claims can be difficult to substantiate, particularly when the claims are made without indication of a clear relative meaning. Ultimately, green claims must therefore be used with care and construed wisely.
Footnote
1. Case No. MD 2014:9; part of the ad can be viewed
here:
http://www.marknadsdomstolen.se/Filer/Avgöranden/Bilagor/Bilaga2014-9.pdf
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