Dusseldorf. “It’s still legal at the moment… We’re firing out the climate savior at a low price.” Under this slogan, the Initiative for Sustainable Viticulture, “Future Wines”, sold remaining stocks of its “Climate Saver” wines – six bottles for 30 euros including shipping. The reason: On September 27th, the consumer directive “Empco” (Empowering Consumers for the Green Transition) comes into force in the EU. And Empco prohibits statements about sustainability if companies cannot clearly prove them.
For months, companies and associations have been campaigning against the implementation of this directive, which is intended to protect consumers from products that companies present as more sustainable and environmentally friendly than they actually are (greenwashing). Companies and industry representatives criticize that it is too much for companies to review and change their website, product packaging and even social media posts well into the past. In the worst case, products would even have to be destroyed because of critical statements on the packaging.
The federal government has now surprisingly heard the call for help from business. On its own nationally, it has created a kind of transition period. On Thursday of this week, the Bundestag passed an amendment to the law against unfair competition, which makes warnings against an Empco violation subject to the principle of proportionality until September 27, 2028.
“It is very good and absolutely necessary that politicians make improvements here,” says Stefan Genth, general manager of the HDE trade association. This would prevent unnecessary environmental damage caused by avoidable destruction of goods.
“I think it's good that the outcry from business is being heard that something has to be done,” says Constantin Eikel, partner at the law firm Bird & Bird and expert in trademark and advertising law. In practice, the transition periods were too short for many medium-sized companies, he adds.
But experts are already warning that it is too early for the affected companies to breathe a sigh of relief. This means there is no real legal certainty - and for several reasons.
In his opinion, companies are now simply in a stronger position if legal proceedings arise. According to the change in the law, a balancing of interests must now take place.
This should take into account what costs the entrepreneur incurs when he sticks stickers on the packaging, or what environmental damage it causes when he destroys packaging. “Deutsche Umwelthilfe, for example, will have a completely different opinion than the company concerned,” says the lawyer.
The environmental, nature and consumer protection association makes no secret of the fact that it will issue warnings to companies. “With Empco behind us, we will continue our ecological market surveillance and legally pursue significant violations of consumer protection,” Jürgen Resch, Federal Managing Director of Deutsche Umwelthilfe (DUH), has already announced.
In addition, the new regulation only applies to goods that were “placed on the market” before September 27th. In case of doubt, the courts would first have to clarify whether this also applies to products that are still in retailers' warehouses and not on the shelves.
Ultimately, it is not yet clear whether the federal government's new change will actually last. The Empco guidelines do not provide for a transition period. It could be that associations sue against the German implementation.
“I advise all companies not to rest on their laurels,” warns expert Eikel. “This will only be the last line of defense if litigation occurs.”
“The verification is time-consuming,” admits a spokesman for the Swiss natural cosmetics and pharmaceuticals supplier Weleda, but emphasizes: “We believe this effort is justified because it strengthens trust in sustainability statements overall.”
“We fully support the goal of the new directive,” says Holger Hanhardt, managing director of Möbelwerke Hartmann from Beelen in Münsterland. “But if even comprehensible technical facts are only allowed to be communicated with footnotes in the future, well-intentioned regulation will quickly turn into a piece of absurdity.”
And it initially costs companies a lot of money. Experts speak of up to 350 working hours and 50,000 euros that have to be planned for an “initial check” alone.
Retailers who have thousands of products with descriptions in their shop in particular need to also work with automation, advises expert Eikel. “You can’t do that manually,” he says. Chocolate manufacturer Ritter, for example, has built an AI agent specifically for this purpose.
The example of Ritter Sport in particular illustrates the dilemma that many companies find themselves in: their boards read “100% certified sustainable cocoa sourcing”. The cocoa is actually certified, but the term “sustainable” is so vague that it cannot be substantiated.
However, it was not possible to adjust the packaging by the deadline. According to Ritter, changing the foil for chocolate takes about two years and costs millions.
And the company didn't want to destroy foil for sustainability reasons. That's why it now covers the statement on the package with a sticker with the simple imprint "100 g".
Companies are taking an extremely cautious approach to the Empco guidelines in order to avoid the risk of incurring penalties. Depending on the EU country, experience shows that there is a risk of warnings and possible sanctions running into the millions.
“No company takes the anti-greenwashing directive lightly because there are high penalties associated with it,” says Petra Fix, responsible for global sustainability communications at Ritter Sport. The previous case law in individual EU countries shows how concrete such dangers are.
For example, the online retailer Shein received a fine of one million euros in Italy last year for misleading statements about the sustainability of its products. “In Germany, too, the law against unfair competition already prohibits making promises that are not backed up,” says lawyer Eikel.
In his opinion, with the Empco guidelines, companies are now paying more attention to ensuring that sustainability statements are also included. There is now practically a blanket ban on simply calling yourself sustainable, energy-efficient or bio-based, he emphasizes.
In addition, the directive creates new uncertainty. “Companies are very unsettled across all sectors,” confirms Fix: “Because there is still a large legal gray area.” Self-launched brands that contain name components such as “green” or “eco” could fall under the regulation, she says. And ultimately, according to experts, it is not even clear whether washing machines will be allowed to have an “eco button” in the future.
