Clean clothing

For some time now, British Vogue’s #GetYourGreens series has been exploring how the fashion industry is trying to move towards a greener future. It highlights sustainability initiatives by fashion brands and advises readers how to be both fashionable and committed to environmental sustainability.

In a publication like Vogue, this long-term series reflects the broad shift in consumer demand and attitudes towards sustainability in the fashion industry and also the wider conversation taking place between brands and consumers. It is a conversation that has been heightened due to the COVID-19 crisis. Today, consumers expect the fashion and retail industry to uphold its environmental, social and governance (ESG) responsibilities.

Since 2018, Lyst, a global fashion search engine, has seen a 66% increase in searches for sustainable fashion and a 187% increase in page views for sustainable denim brands.

An April 2020 report by McKinsey which surveyed consumers in the UK and Germany found that 57% of consumers had made significant changes to their lifestyles to reduce their environmental impact. The report also found that “67% of those consumers surveyed consider the use of sustainable materials to be an important purchasing factor, and 63% consider a brand’s promotion of sustainability in the same way.” In Ireland, a similar 2019 PwC survey found that 41% of Irish consumers are prepared to pay a premium for sustainable products.

It’s clear that companies need to be taking sustainability and transparency considerations into account as part of their corporate strategies – and companies are.

Recent pioneers

Levi Strauss & Co., for example, has made commitments to sustainability throughout its entire design and manufacturing process. The company intends to achieve a 90% reduction in greenhouse gas emissions and use 100% renewable energy throughout its facilities, as well as to reduce greenhouse gas emissions by 40% throughout its global supply chain by 2025.

Notably, luxury fashion group Kering, which includes fashion houses Balenciaga, Gucci, Saint Laurent and Alexander McQueen, has pledged to become carbon neutral within its own operations and across its entire supply chain. The group-wide pledge involves avoiding and reducing annual greenhouse gas emissions and offsetting all emissions since 2018, as well as supporting the conservation of forests and biodiversity worldwide.

Nike has also been working on creating a more circular business model, with many of its core products using upcycled materials. Its Flyknit shoes are made from 100% recycled polyester – by using this product, the company has diverted more than four billion plastic bottles from landfill.

Similarly, Adidas has been working to increase the use of more sustainable materials in its production. The company’s new flagship ecoproduct, Futurecraft Loop, is due to be launched in 2021. It is a 100% recyclable performance running shoe – which will be able to be returned to Adidas, then broken down and reused to create new performance running shoes. From 2024 onward, Adidas will only use recycled polyester in every product.

ESG claims as marketing instruments

As companies take steps to implement more sustainable manufacturing processes and overhaul their supply chains, questions arise as to how these changes in company practices and new products are – and should be – marketed to consumers and whether there are any legal considerations. Buzz words like “sustainable” and “environmentally friendly” are often used to promote the green credentials of companies, where no formal definitions or official standards exist. So what does the applicable law say with regard to these kind of claims?

EU-wide consensus

At EU level, there are several directives in place tackling the issue of misleading advertising dealing with unfair business-to-consumer commercial practices (2006/2004/EC) and concerning misleading and comparative advertising (2006/114/EC). In addition, there are numerous sector-specific provisions, e.g. for automotive (concerning compulsory information regarding fuel consumption or CO2 emissions) or energy-related products (with regard to how much energy is consumed; ads including energy or price information must specify energy efficiency class). As to textile products and their composition, a specific regulation covers fiber names and the related labelling.

Therefore, with respect to fashion and ESG claims, the general requirements applicable to all advertising must be observed:

• marketing communications must not mislead consumers; and
• claims consumers regard as objective must be substantiated.

Notably, when it comes to compliance with these requirements, the particular sustainability or eco-friendliness of clothing, third-party certifications such as fair trade, a company’s participation in charity partnerships and fundraisers, its cooperation with sustainability specialists or alignment with social causes are irrelevant: advertising must never contain false statements or other information likely to deceive. When determining what qualifies as a misleading ad, changing consumer expectations and their attitude towards specific ESG claims are decisive.

Practical examples: proceed with caution

• Popular terms such as sustainable, eco-friendly, 100% natural produced sustainably or ethically produced should be used with caution. Several jurisdictions have strict transparency requirements in place around the use of such terms. For instance, under German case law, the extent of the information duty depends on the type and promotion of the product and its effects on the environment. The use of ambiguous words, such as the terms mentioned above, requires an explicit explanation if the concrete meaning is not apparent from the circumstances of the particular case. The unspecified use of such words carries the risk of the term being considered misleading.
• For the same reason, oversimplifying exaggerations should also be avoided. A product claimed as being “made from recycled paper” was ruled misleading by German judges because only 80% of the product’s components contained recycled materials; the court found that, based on the wording of the claim, German consumers would expect this product to be 100%. Similar concerns are likely to apply for fashion-related claims.
• Any ESG claims-related advertising should not be overly emotional, whether imagery is used or not. Since advertising with sustainability-related claims has a great emotional appeal and promotional effectiveness, there are also strict transparency obligations to observe. In that regard, the same applies as mentioned above: whether an ad is misleading or not is decided on a case-by-case basis.

Summary

Social commitment will be a dominant theme in the fashion industry in the foreseeable future and consumers will hold companies responsible for their investment in sustainability initiatives. However, advertising with ESG claims requires legal diligence in order to comply with existing advertising laws. In this regard, advertisers should always aim to avoid the inclusion of misleading claims or false statements. Any claim that may be regarded as objective by consumers must be substantiated to comply with existing laws.