Greenwashing, the practice of appearing to be environmentally friendly when in fact the enterprise making the claim is polluting it, has increasingly drawn the attention of regulatory specialists in Argentina.
Concern about this practice has increased. A global sweep coordinated by the United Kingdom's Competition and Markets Authority revealed that 40% of firms' green claims could be misleading.
This behaviour affects not only the fashion industry but other fields as well. This article, the first in a two-part series, comments on the various regulatory provisions applicable in Argentina.
Section 42 of the Constitution states that consumers have the right "to adequate and truthful information". The Civil and Commercial Code:
- states that the supplier must provide the consumer with truthful and detailed information regarding the essential features of the goods and services that are being provided (section 1100);
- forbids deceptive advertising, whether comparative or not (section 1101); and
- grants consumers the right to enjoin deceptive advertising (section 1102).
The Consumer Protection Law, No. 24,240, includes a similar provision (in section 4, from which section 1100 of the Civil and Commercial Code was directly taken).
Section 10 of Emergency Decree No. 274/2019 on Unfair Competition, issued on 17 April 2019, defines unfair competition as "deceptive acts about the nature, mode of manufacture . . . main features . . . and conditions of goods or services". Section 11 forbids:
any kind of presentation, advertising or propaganda that by means of inaccuracies or concealments may lead to error, deception or confusion concerning the features or properties, nature, origin, quality, purity, mixture, quantity, use, price, marketing conditions or production techniques of movable or immovable goods or services.
Section 1 of the Antitrust Law, No. 27,442, enacted on 9 May 2018, forbids:
agreements between competitors, economic concentrations, acts or conducts related to the production and exchange of goods or services whose object is to limit, restrict, falsify or distort competition or access to the markets.
Section 159 of the Penal Code stipulates that it may constitute a criminal offence when deceptive advertising is part of a scheme to divert, for the benefit of the advertiser, the clients of another enterprise.
Other provisions, both statutory or regulatory, deal with specific products or activities. Law No. 25,127 on Ecologic, Biologic or Organic Production, issued on 13 September 1999, provides that to qualify as ecological, biologic or organic, the raw materials, intermediate products, finished products and by-products must be the result of a system employing the practices indicated the regulatory provisions implementing the law.
According to section 19 of the Regulation of the Administration of Internet Domains in Argentina, as amended by Regulation No. 2/2022 of 5 January (2022NIC Argentina), the regulatory authority for the registration of domain names in Argentina:
may refuse applications or revoke domain name registrations, without prior notice, when it deems them offensive, discriminatory, contrary to law, or lending themselves to confusion, deception and/or identity theft, or having been registered in bad faith.
Moreover, the Advertising Self-Regulation Council (CONARP) has implemented the Code of Ethics and Advertising Self-Regulation, which set forth the rules and principles concerning digital advertising. Section 14 establishes that advertising must be environmentally friendly and that advertising and other forms of commercial communication, such as product labels and packaging which contain environmental claims, must meet certain requirements to avoid practices involving greenwashing.
The CONARP has been working on different guidelines addressing the activities. In June 2022, the CONARP released the document Environmental Claims in Communication for Commercial Purposes, which lists certain obligations and recommendations addressed to companies that could include green claims in their communication or marketing strategies.
There are several rules to protect consumers from the dangers of greenwashing. Companies must be aware of these conditions when offering products and services to consumers to mitigate claims and contingencies, especially those caused by advertising hyperbole.
For further information on this topic please contact Raquel Flanzbaum or Josefina Piñeiro at Ojam Bullrich Flanzbaum by telephone (+54 11 4549-4900) or email ([email protected] or [email protected]). The Ojam Bullrich Flanzbaum website can be accessed at www.ojambf.com.