On 1 March 2024, the Danish Western High Court passed judgment in an environmental marketing action, deciding whether Danish Crown's use of environmental claims for marketing purposes was misleading and, as such, in violation of the Danish Marketing Practices Act. The High Court found that the statement “Climate-controlled pork” on labels did violate the rules of the Marketing Practices Act, whereas the statement “Danish pork is more climate-friendly than you think” did not. The High Court also held that there were no grounds for prohibiting Danish Crown from using the statement “Climate-controlled pork” going forward, finding that it would have to be decided on a case-by-case basis.
Background
Danish Crown had used the phrase "Danish pork is more climate-friendly than you think" as part of their marketing of pork and had affixed labels that said "Climate-controlled pork" on meat packaging. The action was brought by the Vegetarian Society of Denmark and the Danish Climate Movement, two consumer organisations, which claimed, among other things, that the two statements were in violation of the prohibition of misleading statements in section 5 of the Danish Marketing Practices Act. Also, the plaintiffs claimed that Danish Crown should in future be prohibited from using "Climate-controlled pork" for marketing purposes.
Judgment of the Western High Court
The High Court found that the statement "Danish pork is more climate-friendly than you think" is a relative statement. Therefore, the word "climate-friendly" was not an environmental claim requiring separate documentation under section 13 of the Marketing Practices Act. Instead, the statement had to be assessed in its entirety. Based on the documentation presented, the High Court found, among other things, that the consumer has difficulty assessing the climate impact of individual foods, that pork is better for the climate than certain other animal products, and that the consumer believes that pork is just as climate-impacting as beef. On this basis, the High Court found that the statement was sufficiently substantiated and thus not in violation of the Marketing Practices Act.
As for the statement "Climate-controlled pork", displayed on labels on meat packaging, the High Court ruled that the labels implied the existence of a labelling scheme subject to qualitative environmental control. There was, however, no such scheme, the labels coming from Danish Crown itself. Since the statement concerned actual environmental circumstances, it had to be verifiable. However, the correctness of the statement could not be documented for the entire period during which the labels were used. The High Court established that the average Danish consumer will be influenced by labelling schemes on foods concerning sustainability and climate. The High Court therefore found that the statement was likely to significantly reduce the ability of the average consumer to arrive at an informed decision, see section 8(1) of the Marketing Practices Act, and that using it was therefore in conflict with the rules of said Act.
As for the claim for a future ban on the use of "Climate-controlled pork" for marketing purposes, the High Court emphasised that Danish Crown continues to work with sustainability in its pork production, and that Danish Crown since 2021 has stopped using the statement and the label. Therefore, the High Court found that whether any future use of the statement qualifies as misleading or not will depend on the circumstances. On this background, no general prohibition on future use of the label was introduced.
New perspectives on the environmental marketing playing field?
The judgment emphasises that it is crucial to make sure there is sufficient documentation to back up statements applied in marketing and to be sure that such documentation is in place for the entire period in which the statements are used. As such, this is nothing new - and is also supported by previous case law and by the practice of the Danish Consumer Ombudsman. However, the observations about relative statements are interesting, in that they raise the question of whether the requirements for documentation in such cases should be of a different nature, and whether documentation should not be assessed as strictly as for factual statements.
It will be interesting to follow developments in this area, including whether the judgment will be appealed and perhaps ultimately reversed, and to see how the use of relative statements will play out in the context of future EU greenwashing initiatives, where the requirements for documentation and very clear messaging are expected to be high.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
