Green claims under the Slovak Consumer Protection Act

Under § 9(5), Annex 1 is the list of commercial practices that are always regarded as unfair. For these, nobody assesses whether they could have influenced the decision of the average consumer; it is enough that they happened. The amendment added four points on environmental claims.

Point 3 bans displaying a sustainability label that is not based on a certification scheme or was not established by public authorities. Under § 2(o), a sustainability label is any voluntary trust mark, quality mark or equivalent that aims to set a product or trader apart and promote it by reference to environmental or social characteristics. An icon that a shop uses on its own to mark selected products as greener may fall under that definition.

Point 6 bans a generic environmental claim, for example “climate friendly”, “environmentally friendly”, “green” or “ecological” (in the Act „šetrný ku klíme“, „šetrný k životnému prostrediu“, „zelený“, „ekologický“), where at the same time it is not displayed on a sustainability label, its specification is not given clearly and prominently in the same medium of communication, and the trader cannot demonstrate recognised excellent environmental performance. One of these three supports is therefore enough to keep the claim outside the ban; each is discussed below.

Point 7 bans an environmental claim about the entire product or the trader's entire business where it concerns only a certain aspect of the product or a specific activity of the trader. If only the packaging is made of recycled material, “ecological product” says about the whole what is true only of a part.

Point 8 bans a claim, based on offsetting greenhouse gas emissions, that a product has a neutral, reduced or positive impact on the environment in terms of those emissions. The typical case is a “carbon neutral product” whose emissions are balanced by a project outside it, such as tree planting. The point does not distinguish how credible the offsetting project is; it bans the claim itself.

The second group of new points in Annex 1 concerns how long goods last and whether they can be repaired. A false claim that goods have a certain durability in terms of time or intensity of use under normal conditions of use (point 36), and presenting goods as repairable when they are not (point 37), are unfair in all circumstances.

For consumables, meaning components that are used up repeatedly and must be replaced or replenished, it is unfair to prompt the customer to replace or replenish them earlier than technically necessary (point 38). It is also unfair to withhold information that consumables, spare parts or accessories not supplied by the original manufacturer will impair the functionality of the goods, or conversely to claim falsely that such impairment will occur (point 39). Point 35 concerns goods with a feature introduced to limit their durability: any commercial communication about them is unfair if the trader has information about that feature and its effects.

A true claim about durability or reparability that you can substantiate is not banned by these points.

The evidence has to exist before the claim. Under § 9(12), in proceedings before a supervisory authority or a court, a trader must prove the accuracy of factual claims about its commercial practice where that is appropriate in the circumstances. If it does not provide evidence, or the evidence is insufficient, the claims are regarded as inaccurate. Supplier documentation, certificates and calculations should therefore be at hand before the claim appears on the website.

A generic claim needs one of the three supports named in point 6. The first is a sustainability label on which the claim appears. The second is a specification in the same medium of communication, given clearly and prominently; small print under the product or a link to another page may not meet that condition. The third is recognised excellent environmental performance, which § 2(q) ties to the requirements of a specific regulation, technical standards or the highest level of performance under specific regulations. The footnotes to that letter name the EU Ecolabel under Regulation (EC) No 66/2010, standard STN EN ISO 14024 as an example, and energy labelling under Regulation (EU) 2017/1369 as an example of the highest level.

Under point 3, a sustainability label must be based on a certification scheme or established by public authorities. Under § 2(p), a certification scheme must meet four requirements: it is open to all traders on transparent, fair and non-discriminatory terms; its requirements are developed by the owner in consultation with experts and stakeholders and are publicly available; it sets out procedures for non-compliance, including withdrawal or suspension of the label; and compliance is monitored by a third party independent of both the scheme owner and the trader.

A promise about the future needs a plan. A claim about the future environmental impact of a product, for example “from 2028 all our products will be made from recycled materials”, is a misleading action under § 10(2)(d) if, taking account of all the circumstances, it can lead the average consumer to a decision they would not otherwise have taken, and it is not backed by clear, objective, publicly available and verifiable commitments in a detailed and realistic implementation plan. The plan must include measurable, time-bound targets and the measures needed to deliver it, it must be verified regularly by an independent third-party expert, and the expert's findings must be made available to consumers.

For other claims, accuracy decides. Under § 10(1)(b), environmental and social characteristics, durability, reparability and recyclability are main characteristics of a product. A claim about them is misleading if it is false, or if it deceives the average consumer in any way, even when factually correct, and can thereby lead them to a decision they would not otherwise have taken. Under § 10(2)(e), promoting a benefit of a product that is irrelevant to the consumer and unrelated to any characteristic of the product or the trader is also misleading.

The ban on unfair commercial practices is in § 4(2)(a). For an ordinary online shop it is supervised by the Slovak Trade Inspection, whose remit is set out in § 26(8)(b). Where a shop sells food, cosmetics, medicines or medical devices, those products are supervised by the authorities under § 26(4) to (6): the veterinary and food administrations, the public health authorities and the State Institute for Drug Control.

Under § 43(1)(a), the supervisory authority may impose a fine for a breach of that ban of between 200 euros and 2 % of turnover for the previous accounting period, capped at 200,000 euros. Under § 51, it then publishes the final decision on its website for at least five years.

Under § 9(7), a consumer directly affected by an unfair practice has a right to a free remedy where the nature of the practice allows it, for example an additional price reduction. If they would not have concluded the contract without the unfair practice, they may withdraw from it.