Guidance from the Consumer Ombudsman on the use ofenvironmental and ethical claims, etc., in marketing, January 2011Contents1. Purpose2. Scope of application2.1. Marketing to consumers2.2. Special legislation3. Legal basis4. Definitions5. Who is liable for statements5.1 Liability for the marketing – principal rule5.2 Liability of third parties5.3 Liability of editors6. General requirements of the use of environmental and ethicalclaims, etc., in marketing6.1 Clear and balanced message6.2 Overall impression of the marketing6.3 Documentation of claims6.4 Access to information about environmental and ethical claims,etc.7. Special requirements of environmental claims7.1 Isolated, general environmental claims7.2 Environmental claims with an explanatory statement7.3 Claims about climate neutrality8. Special requirements of ethical claims8.1 Isolated, general ethical claims8.2 Ethical claims with an explanatory statement8.3 Sustainability claims9. Traders’ business profiling and establishment of reputation,etc.9.1 General information about business profiling andestablishment of reputation, etc9.2 Particular guidance on visions, objectives, etc.9.3 Particular guidance on support for good causes andcollaboration with charities, etc.9.4 Particular guidance on collaboration with NGOs, tradeassociations, etc.10. Use of labelling schemes, symbols and certificates10.1 General information10.2 Official labelling and certification schemes

10.3 Private, generally recognised labelling and certificationschemes10.4 Other private labelling schemes, etc.11. Evaluation of the Guidance1. PurposeMarketing containing environmental or ethical claims about a product oran activity is likely to appeal to some generally accepted positivestatements or properties. When a trader uses this type of marketing toboost sales, such marketing must be assessed under the Danish MarketingPractices Act (markedsføringsloven).The purpose of this Guidance is to protect consumers against misleadingand unethical marketing and to support the provision of relevant andcredible information for the benefit of consumers. The Guidance isfurther intended to help safeguard real and fair competition betweentraders. Accordingly, the Guidance aims to make it easier for traders tomarket positive environmental efforts and counter any attempts togreenwash own products. Similarly, the Guidance is to make it clearer fortraders when they may lawfully use ethical marketing statements aboutthe properties, conditions relating to the production of products and aboutthe activities in general of their respective companies.Guidance from the Consumer Ombudsman may be viewed as ‘generalpreliminary information’ by which the Consumer Ombudsman explainshow the marketing rules are to be interpreted in relation to specific fields.This Guidance contains the requirements which, as a principal rule, mayapply to the marketing of environmental and ethical claims, etc,according to the Consumer Ombudsman. It also provides generaldirections as to what typical aspects traders must be aware of if they wantto use such marketing claims. The main focus is a review of therequirements that may apply to environmental and ethical marketingclaims under section 3 of the Marketing Practices Act. In itsinterpretation of the provision, the Consumer Ombudsman looked at,i.a.,which documentation requirements traders must satisfy when usingenvironmental and ethical marketing claims.In general, statements about products or activities must be assessedagainst similar products, etc., in the market. Consumers must be able totrust,e.g.,that a product has a smaller environmental footprint thansimilar products if a trader markets his product as environmentallyfriendly, possibly supplemented by an explanatory statement of whatmakes the product environmentally friendly or less polluting.When a trader markets a product using general statements, the ConsumerOmbudsman finds that it is of vital importance that the product is amongthe top products in the market. If that is not the case, the trader may riskmisleading the consumers. If the statement is specified by a more detailed

explanation, it is required instead that the emphasised environmentalbenefit may not be a general characteristic of similar products.The assessment of marketing communication is based on the overallimpression conveyed to the consumer through the marketing. A case-by-case assessment is made as to whether marketing comprisingenvironmental or ethical claims satisfies the provisions of the MarketingPractices Act or whether such marketing must be considered misleadingor contrary to good marketing practice, see sections 3 and 1 of theMarketing Practices Act.If traders observe the directions of this Guidance in their marketing, theConsumer Ombudsman will not take measures against such marketing,unless special circumstances apply.The Guidance is not exhaustive. Accordingly, if an instance is notdescribed this does not mean that it is considered to be in accordance withthe Marketing Practices Act. It depends on an assessment of theindividual case. The Guidance is to be regarded as an elaboration on theprovisions of the Marketing Practices Act. The examples given in theGuidance are intended as practical guidance for traders. The examplesillustrate,i.a.,the requirements for adequate specification of a statementand must not be perceived as clear guidance as to what is permitted andwhat is not. The examples are supplemented by descriptions of theprevious practice of the Consumer Ombudsman in the relevant field.Ultimately, the courts decide whether there has been a violation of theMarketing Practices Act, including whether a criminal offence has beencommitted.TerminologyThe expressionmustin the Guidance refer to requirements that are madeof marketing and must be observed unless particular circumstances canbe established in the relevant situation which make an alternative solutionmore or equally acceptable in relation to the relevant trader or industry.The use ofshouldexpresses a recommendation. The ConsumerOmbudsman has not decided whether failure to observe therecommendation will be contrary to legislation in all instances. Tradersshould be aware that such instances may be considered misleading orcontrary to good marketing practice depending on the circumstances.2. Scope of application2.1 Marketing to consumersThe Guidance is intended to help ensure that environmental and ethicalclaims, including labelling schemes, symbols, certificates, etc., used inmarketing to consumers are in accordance with the requirementsstipulated in the Marketing Practices Act.

2.2 Special legislationIf other legislation (special legislation) contains special requirements asto the properties, labelling and the like of a product or the marketingthereof, such requirements are not covered by the Guidance. Such specialrequirements must be observed in addition to the requirements that followfrom the Marketing Practices Act.Traders wanting to use environmental or ethical marketing claims musttherefore examine whether special legal rules on marketing apply whichmust be observed. For example, such special rules may stipulaterequirements on the information to be included in the marketing of aproduct or include a prohibition against misleading statements. Tomention an example, special rules apply to the field of chemicalsubstances and products.Moreover, traders must also be aware that the general rules of theMarketing Practices Act on misleading or incorrect statements oromissions of material information may also apply in individual cases. Inparticular, questions may be raised as to whether the Marketing PracticesAct has been observed in cases of misleading omissions,e.g.,if a traderfails to provide information on material factors relating to the product.The regulatory authorities stated in the relevant act are responsible forenforcement of the special legislation.Special fields may also be subject to EU legislation – regulations – thatapply directly to traders. The EEC regulations on the use of the word‘organic’ are examples of such EU legislation. Similarly, internationalconventions may apply to special fields.3. Legal basisThis Guidance has been prepared on the basis of the Marketing PracticesAct, more specifically sections 1 and 3 of the Act1. Only these provisionsare reproduced in this clause. Reference is made to the Annex for moredetailed information on the legal basis, including Articles 6 and 7 of theDirective concerning unfair business-to-consumer commercial practices,in accordance with which section 3 of the Marketing Practices Act mustbe interpreted.

Section 1.

Section 3.

(1) Traders may not use misleading or undue indications oromit material information if this is designed to significantly distortconsumers’ or other traders’ economic behaviour on the market.(2) Marketing whose content, form or method used is misleading,aggressive or subjects the consumers or traders to undue influence, andwhich lends itself to significantly distorting their economic behaviour, isnot permitted.(3) Where factual statements are made, these must be capable of beingsubstantiated by documentation.(4) The Minister for Economic and Business Affairs lays down moredetailed regulations for specific forms of marketing which, pursuant toEU legislation, are considered in any circumstances to be unfair inrespect of business to consumer matters.Violation of section 3(1) or (2) of the Marketing Practices Act or theExecutive Order on Unfair Business-to-Consumer Commercial Practices2may be liable to a fine, unless other legislation prescribes a more severepunishment. The Consumer Ombudsman may also bring actions with aclaim for prohibitory or mandatory injunctions and issue administrativeorders in cases where the legal position is clear.4. DefinitionsProductFor the purpose of this Guidance, ‘product’ means goods, including anypackaging, and services, including real property.Similar productsFor the purpose of this Guidance, ‘similar product(s)’ means productswhich satisfy the same need or serve the same purpose and are marketedin the part of the market with which the trader may compare himself to areasonable and relevant extent, see also in this respect the definition laiddown in competition law of ‘relevant product market’ with mutuallysubstitutable products.StandardsFor the purpose of this Guidance, the term ‘standards’ means ISO/IECstandards, including European standards prepared by the CEN/CLC3which have been implemented and issued as Danish standards. Standardsmay also refer to Danish standards prepared by Danish Standards.Life cycle and life cycle assessmentThe ‘life’ or ‘life cycle’ of a product refers to all the phases which theproduct goes through from ‘cradle to grave’. The phases are consecutiveand interrelated and may be associated with the product as such orelements thereof.‘Life cycle assessment’ covers the mapping of the (environmental)conditions and assessment of any material (environmental) impact

throughout the entire product life cycle, from the acquisition of rawmaterials and manufacturing, to the use and disposal of the product andthe transportation of the product during and between these phases. In theraw material phase, natural raw materials are extracted and processed,e.g.,through mining, forestry or agriculture. In the manufacturing phase,the product is produced from the raw materials, and the use phase refersto the use of the product by the end user. When the product has been usedand worn out, it is handed over for recycling or end processing, whichtypically includes incineration and depositing. The calculation of the(environmental) impact of transportation may be made as a separatetransport phase, but it may also be included as part of the other phases.All phases cover a wide range of processes, all of which are mapped in alife cycle assessment. The phases may be used to summarise the results.Reference is made to ISO 14040 and ISO 14044 on life cycleassessments4.The life cycle phases of services will typically be mapped according tothe following four phases: design of the service, marketing, delivery anddisposal. ISO 14040 (the term ‘product’ also covers services) and ISO14044 on life cycle assessment may serve as the basis for such analysis.Financial and social conditions and impacts are typically outside thescope of the life cycle assessment. However, the principles and methodsapplied in life cycle assessments may also be used in relation to socialand financial aspects.Independent expertAn ‘independent expert/body’ with recognised professional qualificationsis defined as a body that may carry out a verification on a proper basiswith adequate professional integrity and the technical competencies thatmay be required in the relevant field, and which is not dependent on thetrader subject to the verification. Such experts must not participate inactivities that may be contrary to their objectivity and integrity inconnection with the verifications which they have been authorised tocarry out. The experts must not be influenced by any form of pressure orincentive, particularly of a financial nature, that may affect theirassessments or the outcomes of their verification. They must not bedependent on the number of assessments made or the outcomes thereof.For example, educational or research institutions with university status,approved technological service institutes or certification organisationsmay act as experts. Auditors may carry out the verification, provided thatit is within the usual field of responsibility and competencies of auditors.ClaimsThe term ‘claim(s)’ means the use of statements, information, symbols,images, labelling schemes and certificates, etc., used in the marketing ofproducts and activities to boost sales, directly or indirectly.

Environmental claims‘Environmental claims’ means the use of statements, etc., which conveythe impression that a product or an activity of a trader has a smallerenvironmental footprint and/or less harmful impact on the climate thanother products or activities. Environmental claims may relate toenvironmental impacts in general or to elements of the environment, suchas air, water, soil or subsoil, as a consequence of specific emissions.Environmental claims may also relate to noise levels, etc.Ethical claimsIn the Consumer Ombudsman’s opinion, it is hardly possible to provide aclear and unambiguous definition of ethics, including sustainability, asthe concept is relative and subjective and the content must be assessedover time. An assessment according to this Guidance of ethical marketingclaims will include elements such as the following:‘Ethical claims’ means in particular the use of statements, etc., whichconvey the impression that the manufacturing of a product or planning ofan activity of a trader is made according to generally recognised andaccepted standards, for example concerning child labour and generalworking conditions, nature protection, health, animal welfare, corporatesocial responsibility (CSR) initiatives and charity donations. Such claimsare typically based on the trader’s wish to accommodate general orspecific developments and trends that can be inferred from consumers’behaviour.Sustainability claims‘Sustainable development’ is defined on the basis of the BrundtlandCommission Report on Environment and Development of 1987 as adevelopment that meets the needs of the present generations withoutcompromising the ability of future generations to meet their own needs.5‘Sustainability claims’ means in particular the use of statements, etc.,which – from the perspective of a life cycle assessment or product chainanalysis – convey the impression that the manufacturing of a product orplanning of an activity of a trader has been made with key focus on socialand ethical conditions and on making the smallest possible environmentalfootprint (air, water, soil, subsoil and noise) and health impact in view ofthe technological and financial possibilities.5. Who is liable for statements5.1 Liability for the marketing – principal ruleThe trader having made the marketing communication is responsible forensuring that it complies with the Marketing Practices Act. Violation ofthe Marketing Practices Act or other special legislation may entailcriminal liability if the matter is subject to punishment and the violationwas intentional or committed through negligence. It is in generalsufficient that the trader has demonstrated simple negligence.

Which party can be made liable depends on the relevant circumstancesrelating to the preparation and publication of the marketing material. Insome cases, the manufacturer will be liable and the retailer in others. Andin some cases, both may be made liable.5.2 Liability of third partiesA third party,e.g.,an advertising agency assisting the trader with themarketing (drafting of advertisement or provision of advisory services,etc.) may incur joint liability for the marketing. The assessment is madeunder the general rules on complicity of the Danish Criminal Code(straffeloven) and the case law established in the field6.5.3 Liability of editorsAccording to section 27(2) of the Danish Media Liability Act, editors ofmedia covered by the Act are liable for the content of advertisementsunder the general rules of law. Accordingly, an editor may incur liabilityfor complicity according to the Criminal Code.An editor is liable for the content of the advertisement if (s)he fails tosatisfy the duty of disclosure under sections 4 and 6 of the MediaLiability Act. This applies even though the editor did not act wilfully ornegligently.6. General requirements of the use of environmental and ethicalclaims, etc., in marketingThe general requirements made of the use of environmental and ethicalmarketing claims are described in clause 6. The requirements that are alsomade of the use of environmental claims are then stated in clause 7 andthose made of ethical claims in clause 8. The requirements made of theprofiling and establishment of reputation, etc., by traders are stated inclause 9 and requirements of the use of labelling schemes, etc., in clause10.6.1 Clear and balanced messageMisleading and undue marketing is not permitted. This follows fromsection 3 of the Marketing Practices Act, which must be construed inaccordance with Articles 6 and 7 of the Directive concerning unfairbusiness-to-consumer commercial practices. Reference is made to theAnnex.In the Consumer Ombudsman’s opinion, this means that marketingcommunications may be made subject to the following requirements:All claims used for marketing purposes must be correct, accurate,relevant, balanced, clearly worded and easy to understand to avoidmisleading consumers. This also applies to the message in environmentaland ethical marketing claims.

The requirement that claims must be clear and accurate implies that itmust appear in a clear and unambiguous manner whether theenvironmental or ethical claim applies to the company as such, to one ormore activities or a product. It must be stated which matters the claimrelates to, including properties or aspects, and as regards productswhether the claim relates to the entire product, or elements thereof, thepackaging, etc.The requirement of relevance implies that the message must notemphasise properties or aspects that must be considered insignificant inrelation to environmental impact or the ethical dimension.The requirement of balance implies that overstatements about the trader’sactivities or the environmental impact or the ethical properties of theproduct are not permitted and that material information must not beomitted.Accordingly, the marketing must enable consumers to make informedproduct choices, etc., based on environmental and ethical considerations.In that connection it must be borne in mind that claims which are notunambiguous and which may be interpreted in various ways easilybecome misleading if used without any further specification orexplanation. These may be general environmental or ethical claims suchas ‘green’, ‘environmentally friendly’, ‘environmentally correct’,‘gentle’, ‘an ethically correct choice’, ‘safeguarding welfare’,‘sustainable’ or ‘fair’.A specification or an explanatory statement accompanying the claim mustsatisfy the requirements stated above and the property or aspectemphasised must be of material significance to the product, activity oractivities as such. The specification or explanatory statement must appearin immediate proximity to the general claim and must have more or lessthe same message impact.In marketing, the following matters must also be taken into account:The marketing must not be designed so as to exploit in an unfair mannerconsumers’ concern for the environment or any lack of knowledge ontheir part about the environment or ethical matters.Conditions or requirements that follow from legislation,e.g.,aprohibition against the use of certain substances in a product type, mustnot be used independently for marketing purposes7. A marketingcommunication emphasising that the product does not contain elementsor possess properties which have never had any relevance to the productor product category may also be misleading. The same applies to

marketing containing unnecessary information that may conceal thematerial message.Neutral and specific information about a product or a trader presented inan objective manner without emphasising environmental or ethicalconcerns will normally not be regarded as likely to mislead consumers.Messages must be reassessed and possibly updated if necessary in viewof the technological development, comparable products or othercircumstances that may affect the accuracy of the message.The Consumer Ombudsman recommends that in their marketing tradersfocus on providing as specific information as possible about the product,activity or the company to the consumers to enable them to makepurchasing decisions on an informed basis.6.2 Overall impression of the marketingThe marketing must convey a true, balanced and loyal overall impressionof the product, the activities of the trader or the company as such beingmarketed. Marketing is assessed against the overall impression it is likelyto convey to consumers.Based on an overall assessment, the wording, layout, choice of colours,images, sounds, symbols, etc., may convey the impression that a productor activity of a trader possesses environmental or ethical benefits. Theoverall impression may also be influenced by the way in which themarketing is communicated. Aspects of relevance may be the type ofmedia used and the connection in which the claim is presented. Aconcrete assessment is always made of whether the provisions of theMarketing Practices Act have been complied with.6.3 Documentation of claimsWhere factual statements are made, these must be capable of beingsubstantiated by documentation. This follows from section 3(3) of theMarketing Practices Act. The requirement implies that environmental orethical claims about a product and its properties or facts about a trader orhis activities must be capable of being substantiated by documentation.The trader must ensure that such documentation is available before theclaims are used for marketing purposes for the first time.The documentation must be adequate, which normally implies that theclaims must be capable of being substantiated by statements or studies byindependent bodies with recognised professional qualifications. If expertstudies give rise to significant disagreement or doubt as regards theenvironmental impact or the ethical dimension, the trader must provideinformation about this in a balanced manner or refrain from marketing themessage altogether.

If a study was carried out by the manufacturer or the trader marketing theproduct, such study must be assessed by an independent body or it mustbe verified in an equally adequate manner that the study has been carriedout correctly and that the assessment of the results is professionallysound.The requirements of the content and scope of the documentation willdepend on the specific content of the statement. The complexity of theproduct or activity will also be of relevance in this respect.Documentation for general, isolated statements not accompanied by afurther explanation must be provided in the form of life cycleassessments. These must be made according to recognised or generallyaccepted methods applicable to the relevant product type, thuscomprising a review of the conditions (e.g. the environment) and anassessment of the material impacts. Reference is made to the definitionunder clause 4 of the Guidance. If such methods have not yet beendeveloped in the relevant field, refraining from using general, isolatedstatements should be considered.The more detailed requirements of the documentation of environmentaland ethical claims will depend on the specific claims used in themarketing. Reference is made to clauses 7 and 8 of the Guidance.The trader should retain the documentation for at least two years after themarketing claim was published. The reason is that the time limit forlimitation of criminal liability is two years.6.4 Access to information about environmental and ethical claims,etc.In its capacity as supervisory authority, the Consumer Ombudsman isentitled to receive documentation verifying any factual statements in theclaims used by a trader for marketing purposes.According to the Consumer Ombudsman, the public is entitled to areasonably detailed, intelligible explanation of environmental or ethicalstatements, etc., and information on how these have been documented,see section 1 of the Marketing Practices Act. Otherwise, consumers willbe unable to understand or assess the validity of the specialenvironmental or ethical conditions relating to a product before taking apossible purchasing decision. To give an example, this may be done bythe trader providing a summary of the findings of the studies made orstatements supporting the documentation. Where extensive studies, etc.,have been made, the trader may choose instead to give an intelligibleexplanation supplemented by information about the nature of the studyand who made it.

The Consumer Ombudsman recommends that traders consider thepossibility of making the actual documentation supporting theenvironmental and ethical claims available to the public.However, traders are not obliged to present confidential businessinformation,i.e.,information on technical devices, methods or onoperating or business matters, including know-how and patent rights.If the verification of an environmental or ethical claim requires access toconfidential business information, the trader is recommended to seekadvice from an independent expert prior to publication of the marketingand to give such expert access to relevant information to the extentnecessary to enable the independent expert to warrant the documentationof the claim made8. Any use of such advisory services should bementioned in the explanation to the public, see the second paragraph ofthis clause.If it is not possible to publish the explanatory statement and anydocumentation of the properties or benefits marketed on the packaging inthe advertisement, etc., it must be stated where further information maybe obtained,e.g.,on the trader’s website or in brochures.7. Special requirements of environmental claimsReference is made to clause 4 of the Guidance for a definition ofenvironmental claims. Clauses 1-6 and 9-10 of the Guidance apply toenvironmental marketing claims in general, whereas this clause containsthe special additional criteria for the use of environmental claims.This clause relates to the general requirements that can be made of themarketing of isolated, general environmental claims (clause 7.1),environmental claims with explanatory statements (clause 7.2) and claimsabout climate neutrality (clause 7.3) – particularly in light of section 3 ofthe Marketing Practices Act concerning misleading and undue marketing.As a general rule, environmental statements must be relevant and up-to-date and must be reassessed as necessary according to developments.Reference is made to clause 6.1 of the Guidance.7.1 Isolated, general environmental claimsExamples of general environmental claims are ‘environmentallyfriendly’, ‘environmentally correct’, ‘gentle on the environment’, ‘green’,‘blue’, ‘climate friendly’, ‘more environmentally friendly’, ‘smallerenvironmental footprint’, ‘more gentle on the environment’, ‘better forthe environment’, ‘non-toxic’, ‘no chemicals’, ‘natural’ or ‘organic’.Such claims are likely to convey the impression to consumers that aproduct or an activity of a trader mainly has a positive effect on theenvironment, is gentle on the environment or has no or only a limited

environmental impact. General claims are often likely to create confusionabout the specific contents.The Consumer Ombudsman also finds that isolated, general claims willgenerally be perceived as absolute statements about andrecommendations of a product as such. This type of claims is thereforelikely to mislead consumers if the environmental qualities of the product,etc., do not correspond to those of similar products of the best quality.Therefore, traders must:•as a principal rule, be able to substantiate that the productgenerally has a significantly smaller environmental footprintthan similar products; and•normally have made a complete product life cycle assessment.Reference is made to clause 4 above for a definition of life cycle and lifecycle assessment and clause 6.3 above for a definition of documentationof claims.Practice: If for environmental information (reduced discharge ofchemicals) visual effects (colour and imagery) are used on packaging,etc., that convey or must be deemed likely to convey an overallimpression to consumers that a product has a reduced environmentalimpact, they must be capable of being substantiated according to thesame requirements as apply to the use of general environmentalarguments9.However, some fields may be subject to such detailed rules that the use ofa general environmental statement may be justified. If a product iscovered by a license to use the ecolabel of an official ecolabel scheme,such as the Nordic Ecolabel ‘the Swan’ or the European Union Ecolabel‘the Flower’, see clause 10.2 of the Guidance, or it is verified by arecognised independent expert that the product satisfies all criteria forobtaining the ‘Swan’ or ‘Flower’ label10, the trader will normally be ableto market the product using statements such as ‘smaller environmentalfootprint’, ‘more environmentally friendly’, ‘more gentle on theenvironment’, ‘better for the environment’, etc. If a product has beenmanufactured according to the rules on organic production11and labelledas organic, the trader will often be able to market his productaccordingly12.Traders must be aware that special fields,e.g.,chemicals13, may besubject to legislation and case law prohibiting the use of certain types ofgeneral claims. This applies even though the relevant product is coveredby an ecolabel or the like. Reference is made to clause 2.2 of theGuidance.Similarly, a trader licensed to use a label or certificate of a private,generally recognised ecolabel or certification scheme covered by clause10.3 of the Guidance will, depending on the circumstances, as a rule be

able to market his products, etc., using more general statements providedthat all the requirements listed in clause 10.3 are satisfied and theestablished criteria dictate a standard level ensuring that only the top one-third of the products of the category satisfy them.In the assessment of the Consumer Ombudsman, the use of marketingclaims about environmental benefits can hardly be made in practicewithout at the same time providing a detailed explanation of theproperties to which the environmental claim relates.Example: The product as such must not be marketed as recyclable if onlyparts of the raw materials used in the product are recyclable.Practice: The use of the statement ‘ENVIRONMENT, PLEASE’ inconnection with the sale of computers and referring only to workingenvironment was a misleading marketing practice, because consumerswould immediately think of the physical environment (soil, air and water)and not working environment14.Practice: The statement ‘Natural gas is clean energy and not a burden onthe environment like oil’ was perceived as a general expression thatnatural gas is non-polluting, which is not the case as natural gas, amongother things, contributes to pollution by the emission of nitrogen oxides15.

Particular guidance on the use of the term ‘organic’ for non-foodproductsThe rules on organic production mainly cover living or unprocessed agri-cultural products as well as food and animal feed.It may be difficult to determine the extent to which a trader may market anon-food product not covered by the rules on organic production asorganic without violating the provisions of the Marketing Practices Act,more specifically the prohibition of misleading marketing practices laiddown in section 3.According to the Consumer Ombudsman, the current Guidance shouldrestrict the interpretation of the Marketing Practices Act in this respect tothe marketing of textiles and cosmetics16, in which fields organicmarketing statements are used to an increasing extent.Special rules may be laid down or decisions made on a Danish orEuropean level17on the extent to which the term organic may be used fornon-food products. If that is the case, traders must first of all observesuch rules and decisions.If no special rules apply in the relevant case, the Consumer Ombudsmanfinds that an assessment according to the Marketing Practices Act shouldbe based on the notion that organic production is an overall system of

farm management and food production which safeguards severalinterests18. Accordingly, when a trader uses ‘organic’ statements,requirements must be made first and foremost of the raw materials of thenon-food products.The Consumer Ombudsman further finds that the proportion of rawmaterials/ingredients in the product which originate from certifiedorganic production should be of a certain size19. For the determination ofthe size of the organic proportion, inspiration can be found in Article23(4)(a)(ii) of Regulation (EC) No. 834/2007 and especially in Danishprovisions on organic agricultural products used for non-food purposes20.As a rule, there will be no basis for intervention under the MarketingPractices Act if the marketing of a product satisfies the followingconditions:•Textile products may be labelled organic when at least 95% of thetotal fibres of the product (including synthetic fibres) originatefrom certified organic plant and/or livestock production coveredby Regulation (EC) No. 834/200721. It is a condition that othersubstances used do not materially reduce or neutralise the benefitsof the organic cultivation (i.a., without pesticides), making astatement that the product is organic misleading even though rawmaterials from certified organic production have been used.Cosmetic products may be labelled organic when at least 95% ofthe total raw materials/ingredients in the product (added water notincluded) originate from certified organic plant and/or livestockproduction covered by Regulation (EC) No. 834/200721 22. It is acondition that non-organic substances/ingredients do not by theircomposition or effect on the processing unduly reduce orneutralise the benefits of the organic cultivation, makingstatements that the product is organic misleading23.

Accordingly, products of both product groups must not contain an unduequantity of synthetic substances, etc., which consumers may reasonablyexpect not to occur in organic products. To give another example,products must not contain chemicals which are maybe not prohibited bylaw, but which have been identified as problematic, see clause 3.3.5Environment of DS 49001 ‘Social responsibility management system’.24Traders must therefore be careful when selecting non-organicsubstances/ingredients and assess them and their effects in light ofestablished technologies, among other things.If, in connection with the use of organic marketing claims about a non-food product, a trader attempts to communicate more than the organicproduction method of the raw materials/ingredients,e.g.,that the productsafeguards human and/or animal health, such marketing may also misleadconsumers. Moreover, such products cannot be marketed directly ashaving,e.g.,a ‘smaller environmental footprint’ without substantiating

that the requirements of the use of isolated, general claims have beensatisfied25.If a textile or cosmetic product does not directly satisfy the criteria stated,an assessment must be made in the individual case of whether generalorganic statements may be used to describe and market the product. Inconnection with such assessment, it may be considered whether theproduct is certified according to a private scheme (European orinternational) recognised in Europe or satisfies the requirementsstipulated in such scheme. Focus may be had on the requirements of thescheme as to the proportion of organic substances in the finished productas well as requirements of the contents of any non-organicsubstances/ingredients. Where relevant, the processing method used mayalso be considered. As regards the general criteria of private, generallyrecognised labelling and certification schemes, reference is made toclause 10.3 of the Guidance.In cases where the product may not be described and marketed as organicin general, a trader may state the percentage content of certified organicsubstances.7.2 Environmental claims with an explanatory statementEnvironmental marketing claims may be composed of a general claimand an explanatory statement, that is, the marketing of one or morespecific environmental benefits intended to support and explain thegeneral part of the claim. When a marketing claim is accompanied by anexplanatory statement, a life cycle assessment of the product, etc., isgenerally not required as documentation for the claim as opposed toisolated, general environmental claims, see clause 7.1 of the Guidance.Example: ‘Think about the environment – take the bus instead of the carand help reduce carbon emissions, as a bus with at least X passengersemits less CO2 than the corresponding number of cars carrying oneperson each.’In general, this type of claims will be more informative for consumersthan isolated, general environmental claims. When using statementscontaining an explanation, it will be easier for traders to providedocumentation that their marketing is not misleading as such statementstypically only relate to one environmental benefit.According to the Consumer Ombudsman, it follows from the prohibitionof misleading marketing practices laid down in section 3 of the MarketingPractices Act that such statements must satisfy the requirements stated initems 1-4 below in particular. As a rule, if these requirements are notsatisfied, questions may be raised as to whether the statement is contraryto section 3 on misleading marketing:

1. The reduced environmental impact emphasised must be one ofthe most important environmental benefits of the product andbe of material importance to the environmental impactOn the one hand, the specifying part of the marketing claim must besufficiently accurate and relate to material aspects of the environmentalimpacts of the product and, on the other, it must point to anenvironmental impact of the product or the trader’s activities which mustbe regarded as material to the overall environmental footprint. Anexample could be a statement that the positive effect relates to air, soil,subsoil, water, noise, etc., over the entire life cycle of the product. Theapplication of the life cycle perspective ensures that impacts are notmerely transferred from one area of the environment to another, includingin terms of geography.If properties with only marginal environmental effects are emphasised,the marketing of the product, activity or the trader’s company may bemisleading. The trader must also make sure that the claim and theexplanatory statement are read together. Reference is made to clause 6.1.Practice: The statement ‘Throw away the old energy consuming machineand save up to DKK 2,102 before tax each year on water, detergent,electricity, etc., on the new washing machines’ was consideredmisleading and an unfair omission of information because part of thesavings was to be obtained through less tumble drying, which had notbeen stated26.2. The environmental benefit marketed must not have beenobtained through efforts which cause damage to theenvironment in themselves.Example: ‘Pressure treated wood is environmentally friendly because itdoes not require paint or finish - it simply doesn’t rot.’ However, thereason is that toxic substances have been added to the wood and arereleased to the environment over time, and the wood must therefore bedeposited at a landfill when it is worn out.3. Other environmental aspects of the product must notsignificantly reduce or neutralise the benefitMarketing messages must be balanced. This means that otherenvironmental aspects of the product must not represent an environmentalburden large enough to affect its overall environmental impact, making ita misleading statement.4. The environmental benefit must not be a general characteristicof similar products

Environmental benefits of a product which are marketed in connectionwith a general environmental claim must normally be compared withsimilar products as such environmental statements will tend to bepresented as though they are qualitative benefits of the product which donot apply to other similar products. An environmental claim may beconsidered misleading if a considerable proportion of the similar productsin the market have the same or smaller environmental impact with regardto the specific environmental benefit(s) marketed.In the Consumer Ombudsman’s opinion, the requirement of clause 4 will,as a rule, be regarded as satisfied if the tradera. is able to substantiate that the product represents a significantlysmaller burden on the environment than similar products asregards the environmental benefit emphasised; orb. is able to substantiate that the product is among the top one-thirdcompared with similar products measured by its overallenvironmental impact (depending on the content of the claim,official labelling schemes, see clause 10.2 of the Guidance, may,for instance, serve as sufficient documentation if the criteria laiddown in such scheme constitute documentation for the statement);orc. is able to obtain verification by a recognised independent expertthat all criteria for using an official ecolabel, such as ‘the Swan’,have been met for the relevant product group27, and the criteriaestablished constitute documentation for the statement; ord. is able to substantiate that a private, generally recognised labellingor certification scheme satisfies the requirements stated in clause10.3 of the Guidance, and the criteria dictate a standard level thatensures that only the top one-third products of the category satisfythem, and that the criteria established constitute documentationfor the statement.Even if a trader is unable to substantiate as stated above (a-d) that theenvironmental benefit is not a general characteristic of similar products,the marketing may not necessarily be misleading according to section 3of the Marketing Practices Act. However, the trader must substantiate thisby other means. And the trader cannot simply expect that the marketingwill be considered lawful as a rule.The assessment of whether the content and scope of the documentation(substantiation) is sufficient relative to the said general requirements ismade according to a principle of proportionality which takes into accountthe specific content of the statement, the nature of the product, etc.Reference is made to clause 6.3 and to the principle that factualstatements must be capable of being substantiated by documentation.

7.3 Claims about climate neutralityIf a trader uses climate neutrality claims, a calculation must be made ofthe total emissions of climate gases from the product, activity or thecompany marketed. The total emissions must be nil.The six greenhouse gases covered by the Kyoto Protocol28must beincluded in the calculations, which must be made according to recognisedscientific methodologies,e.g.,according to the IPCC Emission FactorDatabase, the Greenhouse Gas Protocol or relevant ISO standards29.The trader must seek to reduce his emissions of greenhouse gases bytaking steps to reduce emissions from production or from the company,depending on the marketing claim30. The trader must make a plan forreducing the relevant emissions, which must be verified by anindependent body, and submit emission accounts. Such accounts mustprovide information on the calculation of the emissions and the valuesused for translating the gases into CO2 equivalents.If the total emissions do not equal nil, the trader may purchase issued EUquotas for the residual emissions. Such quotas must be purchased beforethe claim is marketed or, if that is not possible, in connection with theongoing supply of products in order to ensure a constant balance betweenthe amount of products sold and the quotas purchased. Documentationmust be provided that the quotas have been erased and thus cannot besold to third parties.A trader may also compensate for residual emissions by purchasingcarbon credits from international carbon reducing projects. These may beJI project credits31or CDM project credits32. The compensation must bemade before the claim is marketed or, if that is not possible, in connectionwith the ongoing supply of products in order to ensure a constant balancebetween the amount of products sold and the credits purchased.Documentation must be provided that the JI/CDM credits will be erasedand thus cannot be sold to third parties once the credits have beenrecorded as received by the trader in the quota register33.In addition, a trader may support tree planting projects in developingcountries provided that this is done under controlled conditions so that thecompensation for any residual emissions can be verified by anindependent body in an equally adequate manner as that for the purchaseof quotas or credits.Reference is made to clause 6.4 of the Guidance regarding publication ofplans for reducing climate gases and emission accounts.8. Special requirements of ethical claimsReference is made to the definition of ethical claims in clause 4 of theGuidance. Clauses 1-6 and 9-10 of the Guidance apply to ethical

marketing claims in general, whereas this clause contains specialadditional criteria for the use of ethical claims.8.1 Isolated, general ethical claimsAs a general rule, traders enjoy commercial freedom of expression andare entitled to use ethical claims in marketing. But general ethical claimsused in the marketing of a product or an activity – without a furtherexplanation of the ethical benefit set out in the claim – may be consideredmisleading.Example of a misleading claim: ‘Make an ethical choice – buy productxx.’In practice, the use of claims about ethical benefits in marketing willtherefore be problematic if such claim is not accompanied by a moredetailed explanation of the properties or aspects to which the ethicalclaim relates.However, depending on the specific claim, a trader wishing to use generalethical claims must normally provide documentation that the product oractivity is significantly better than similar products measured over itsentire life cycle.It may, however, be very difficult to carry out a life cycle assessment ofethical conditions. For that reason, traders may apply globally orientedsocial responsibility guidances as a basis for the required documentation,e.g.,the UN Global Compact or ISO 26000 ‘Guidance on socialresponsibility’, while at the same time making sure that relevant activitiesin the company’s supply chains and sphere of influence as a whole arealso taken into account in connection with the use of isolated, generalethical claims. Danish guidances, such as DS 49001 ‘Social responsibilitymanagement system’ and DS guidance 49004 ‘Social responsibility’, mayalso serve as point of departure for the actual documentationsubstantiating the claim if they provide an equally adequate basis fordocumentation.The Consumer Ombudsman recommends that traders exercise caution inusing isolated, general ethical claims in marketing.8.2 Ethical claims with an explanatory statementA general ethical claim may be supplemented by an explanatorystatement, that is, the marketing of one or more specific ethical benefitsintended to support and explain the general part of the claim. When amarketing claim is accompanied by an explanatory statement, a life cycleassessment of the product, etc., is generally not required asdocumentation for the claim as opposed to isolated, general ethicalclaims, see clause 8.1 of the Guidance. It is only required that theconditions stated in this clause are satisfied.

The explanation must be sufficiently accurate. In other words, it mustappear in a clear and unambiguous manner whether the ethical claimrelates to working conditions, child labour, animal welfare, improvedconditions for local manufacturers, etc. The ethical benefits of theproduct or activity must not be overstated. Moreover, the claim mustrelate to material ethical aspects of the product or activity. If properties orimprovements of completely marginal importance from an ethical pointof view are emphasised, the marketing of the product or activity may bemisleading. As far as possible, the benefit emphasised should be assessedas part of a a life cycle perspective, see clause 8.1.The use of ethical marketing claims may convey the impression that theproduct is not contrary to other ethical values. This type of claims musttherefore only be used to the extent that such use is not misleadingrelative to other generally accepted ethical standards,e.g.,concerningworking conditions.Example: ‘Over the last ten years, we have built schools for the childrenat our five production sites in India.’ (But the company fails to mentionthat the children work eight hours a day at the factories).Practice: It was misleading to use claims such as ‘eco fur’ or ‘organicfurs’ in the marketing of fake furs34.The ethical benefit emphasised in the marketing must also be assessedagainst similar products offered in the market. If it is established that asignificant proportion of such products are of similar or higher ethicalstandard as regards the benefit(s) emphasised, the use of the ethicalmarketing claim may be considered misleading, depending on thecircumstances.8.3. Sustainability claimsOn the basis of the deliberations made in 1987 about sustainabledevelopment, claims about sustainability must be based on theobservance of requirements that regard must be had to social and ethicalconditions and requirements of reducing the environmental and healthimpacts as much as possible, see clause 4 of the Guidance. It is anongoing process, for which reason traders are under an obligation togradually reduce the impacts over time as facilitated by futuretechnological and financial possibilities35.A claim that a product, an activity or a company is sustainable may bedifficult to formulate in a sufficiently accurate manner withoutmisleading consumers. In addition, no general criteria or requirementshave been laid down by the legislature concerning the use of the term‘sustainability’, nor has any general methodology been defined tomeasure sustainability.

In view of this, the Consumer Ombudsman finds that generalrequirements of the marketing of sustainable products, activities orcompanies can hardly be made at present. Where certain fields are subjectto specific Danish or European rules of law, etc., traders must observesuch rules. These will often be a result of established strategies or overalltargets and action plans for sustainability in Denmark and the EuropeanUnion which have not yet been completed.However, if a trader uses the term ‘sustainable’ in his marketing of aproduct or an activity, the Consumer Ombudsman will make a specificassessment against an overall impression of the marketing of whether thestatement is misleading and whether it is capable of being substantiatedby documentation. As sustainability relates to both the environment andethics, the requirements stated in clause 7 on environmental claims andclauses 8.1 and 8.2 on ethical claims must be satisfied. It may also be ofimportance to the assessment whether the trader meets generally acceptedhigh environmental, health, social and economic requirements andsafeguards ethical considerations in a wide sense. Among other things, itmay be relevant to examine whether the product is manufactured underproper manufacturing and working conditions and conditions thatsafeguard a sustainable development of the local community as regardsclimate, the environment, living conditions, ethical considerations, health,etc.The assessment may also include an evaluation of whether therequirements apply to the entire product chain, including primarysuppliers.The Consumer Ombudsman will emphasise the interaction between theenvironmental, health, social and economic aspects, and as a minimumrequirement one aspect may not be neglected due to focus on otheraspects. Further, the product, etc., must be improved/developed on acontinuous basis.The Consumer Ombudsman is aware that private initiatives may result inthe development of sets of criteria that dictate stringent requirements ofthe use of sustainability claims in product marketing. To give an example,the Danish Council for Sustainable Business Development is preparing aguidance paper on principles for sustainable products. When the guidancepaper has been completed, the Consumer Ombudsman will positivelyconsider whether observance of the guidance principles may serve tosubstantiate that the products marketed by a trader are sustainable. In thatcase, the substantiation must be based on stringent requirements whichhave been verified by an independent expert as giving the product groupa high ranking in the market. The trader must also be able to providedocumentation that the marketing satisfies the stringent requirements.9. Traders’ business profiling and establishment of reputation, etc.

The general principles of clauses 1-8 and 10 of the Guidance also applyto the profiling and establishment of reputation, etc., of a trader’sbusiness. This clause states special, additional criteria for traders’ use ofenvironmental or ethical claims to profile their business and establish areputation.9.1 General information about business profiling and establishmentof reputation, etc.Traders marketing the environmental or ethical profile of their companyby using catchphrases, mottos, visions, collaboration with charities orsimilar organisations may risk misleading consumers or otherwisecontravening the Marketing Practices Act.The overall impression conveyed to consumers through a marketingcommunication intended to profile and/or establish the reputation of atrader is of decisive importance to determining whether the MarketingPractices Act has been observed. In this connection, the use of images,sounds, symbols, colours and similar effects is of relevance, see clause6.2 of the Guidance.Reference is also made to clause 6.1 of the Guidance for informationabout the requirement that the message must be communicated in a clearand balanced manner. It should also be noted that:•In connection with their profiling and/or establishment ofreputation, traders should focus on making specific marketingclaims rather than general statements that their company isconcerned about the environment or safeguards ethical standards.Accordingly, information about specific initiatives taken or planslaunched for the sake of the environment or for other purposes ismore useful for consumers than vague and unclear statementsabout commitment and values.•Traders must view the marketing in relation to the scope of theirenvironmental or ethical initiatives. Overstated marketing claimsmust be avoided. If specific initiatives or individual activities areemphasised in a way that is likely to portray a betterenvironmental or ethical profile of the trader than what is justifiedbased on an objective overall assessment of the company, suchmarketing may be misleading and considered to omit materialinformation. The extent to which the marketing covers the supplychain may be taken into account in such assessment.Example of a general and vague claim: ‘We are working to create a morejust world.’Reference is made to clause 8.3 of the Guidance for information aboutsustainability.

If a trader uses environmental or ethical statements in his company name,a product name, etc., and the name is used for marketing purposes, suchmarketing is subject to the same documentation requirements as thosewhich apply to other environmental or ethical argumentation in marketingcommunications.Example: ‘The green cleaning squad.’Practice: The use of the company name of ‘XX Ecofruit’ and publicationof a leaflet with the word ‘environment’ printed in large letters on thefront page meant that the trader was required to submit a life cycleassessment of the manufacturing process36.Practice: In a case of the marketing of an ‘eco coffin’ made of paperfibre the trader was required to submit a life cycle assessmentdocumenting that the product had a significantly smaller environmentalfootprint measured over its entire life cycle than other products in thesame category37.As a rule, the name of an event or product which has existed for a numberof years and become well known to consumers will not be likely tomislead consumers even if the name includes a general environmentalstatement.9.2 Particular guidance on visions, objectives, etc.A trader may wish to market visions, objectives, etc. In that connection,the trader must pay special attention to section 1 on good marketingpractice of the Marketing Practices Act. However, section 3 onmisleading marketing may become relevant, particularly if the marketingis made for the purpose of selling goods or services.Claims about objectives must normally only be used for marketingpurposes if the trader has and focuses on clear and specific action plans toachieve that objective. The action plans must have been launched or justabout to be launched and must be measurable.The claim must be worded as specifically as possible and should alsoinclude information about any results already achieved. It should bestated whether the action plans cover the primary suppliers. Claims aboutobjectives which the trader is far from able to achieve when themarketing is published and vaguely worded claims about environmentaland ethical objectives may be regarded as misleading or unfair toconsumers. The marketing of visions without concrete action plans maybe regarded as misleading, depending on the circumstances.Care should therefore be taken when using information in marketingabout a trader’s visions, objectives or other future conditions.Example of a too general claim: ‘Before 2020, we will build schools inall our production areas for the children of the factory workers.’

Example of a claim that may be more informative, depending on thespecific situation: ‘Over the next two years, we will reduce our overallpower consumption by 40%.’And an even more informative claim: ‘Over the past two years, we havereduced our overall power consumption by 40%. Over the next five years,we will reduce it by a further 5% a year.’The safeguarding of ethical and other social considerations may form partof a trader’s CSR efforts.The Danish Council on Corporate Social Responsibility has expressed acommon understanding of social responsibility as follows: ‘Businessesdemonstrating social responsibility and creating value for the business aswell as society by addressing social, environmental and ethical challengesthrough dialogue with its stakeholders in accordance with internationallyrecognised principles38 39.’The UN Global Compact, ISO 26000 ‘Guidance on social responsibility’,the OECD Guidelines for Multinational Enterprises and DS 49001‘Social responsibility management system’40may be used as guides toexamples of ethical and social considerations. Traders may also findguidance atwww.samfundsansvar.dkIf a company wishes to market its CSR efforts to consumers, for exampleby focusing on special aspects, such marketing must be made accordingto the above paragraphs of this clause.Reference is made to clause 8.3 of the Guidance for information aboutsustainability.9.3 Particular guidance on support for good causes and collaborationwith charities, etc.Information used in marketing that a trader supports good causes orcollaborates with charities may have an effect on consumers’ emotions,conscience, etc., which must be taken into account.If such information is used for marketing purposes, it must besupplemented by clear information about the nature of the trader’ssupport or collaboration. For example, if an amount is donated for eachproduct sold, information must be provided as specifically as possible,preferably stating the exact amount, on the proportion of the price beingdonated to the purpose (relief work, a specific aid agency or other cause).It should also be stated where further information is available,e.g.,atelephone number or a website. Reference is made to clause 6.3 of theGuidance for information about documentation.

Example: ‘We collaborate with the Zealand Environmental Activists for abetter environment.’ (Inaccurate description – the consumer is notinformed of the nature of the collaboration or what it means to theenvironment or the product marketed.)Example: ‘We support the Zealand Environmental Activists with 0.14kroner per kWh. The money is used for the Activists’ work for morebicycle tracks.’ (Clear information is provided on the amount donated,the association it is donated to and for what purpose.)Having established a framework for the collaboration with a charityalready before the collaboration commences will be expedient. Theparties should therefore determine the exact nature of the collaboration,including how the trader may use the collaboration in his marketing.Inspiration can be found in ‘Partnership Practice’41. The purpose of thiswebsite is to share information and experiences about collaborationpossibilities.If sponsorship agreements are used in marketing and such marketingprovides more than neutral information about the sponsorship, therecommendations in this Guidance must be followed.9.4 Particular guidance on collaboration with NGOs, tradeassociations, etc.A trader may collaborate with particular NGOs, trade associations, etc.,for the purpose of having specific products recommended or praised toconsumers. Such collaboration means that the organisation or associationgives the product a stamp of approval, so to speak. Because it was madeby the relevant organisation or association, such recommendation willappear more trustworthy to consumers than if the trader himself hadrecommended the product. If the organisation or association receivespayment or other compensation for the collaboration, this must be statedand the requirements of the Marketing Practices Act (e.g., section 1 ongood marketing practice and section 4 on advertising identification) andof this Guidance must be satisfied, including the documentationrequirement.10. Use of labelling schemes, symbols and certificates10.1. General informationThe use of labelling schemes, symbols or certificates for the purpose ofemphasising the environmental or ethical properties or aspects of aproduct or an activity constitutes a special type of environmental andethical claims.Where labelling schemes, etc., are used in marketing, information abouttheir meaning must be provided on the packaging, in advertisements orother marketing material, possibly also stating where detailed or

supplementary information on the labelling scheme or symbol may beobtained. The trader’s website could be one such place.Practice: In a case concerning the labelling scheme ‘Eco-Tex’, theConsumer Ombudsman expressed the opinion that a label of this natureshould state in clear and unambiguous text and visual effects what iscontrolled (the maximum content of formaldehyde, etc.)42.The criteria for the use of labelling schemes, symbols and certificatesmust be capable of being verified and controlled. This applies to bothofficial and private labelling schemes and certificates. Traders must beable to provide documentation that the criteria are satisfied. As a rule, theConsumer Ombudsman will deem the documentation requirement to besatisfied if a product, etc., has obtained an ecolabel of one of the officiallabelling schemes, see clause 10.2 of the Guidance. The same applies tocertificates which are subject to similar requirements and controls.Even though the trader satisfies the criteria for the use of labels, symbolsor certificates, any use thereof for marketing purposes must be inaccordance with the Marketing Practices Act and this Guidance.Example of a statement that may not be used (see clause 6.1 of theGuidance): ‘Buy XX-labelled bananas and eat bananas with a betterconscience.’The marketing message must not be overstated. This means that thetrader must not use marketing statements that exceed what is justifiedbased on the content of the scheme.Moreover, the use of labelling or certification schemes in marketing mustnot be misleading,e.g.,by referring to an entire range of products if onlyone product is covered by the ecolabel or other scheme (greenwash of theentire product range). It must be stated in an unambiguous manner whatproduct(s) of the trader has/have obtained the label. Certification relatingto the company or its management, etc., must not be used in themarketing of the company’s products.10.2 Official labelling and certification schemesThe use of official labelling schemes, symbols or certificates in marketingmay serve as important information about the properties of a product or acompany.Official labelling or certification schemes are schemes that are approvedor managed by public authorities or managed on behalf of publicauthorities and for which, on the basis of legislation, clear criteria havebeen established for the use of the label or certificate.Such labels include ‘the Flower’ (the official ecolabel of the EuropeanUnion) and ‘the Swan’ (established by the Nordic Council of Ministers),which are both managed by Ecolabelling Denmark (more information

available atwww.ecolabel.dk.Other examples include the ecolabelling ofagricultural products and food and certificates which,e.g.,serve asdocumentation for a good working environment.There may be official certification schemes that do not in themselvesexpress stringent environmental requirements and which therefore cannotbe compared with ‘the Swan’ or similar schemes. Traders with suchcertificates must satisfy the general documentation requirements stated inthis Guidance if the certificate is used in connection with environmentalor ethical marketing claims.The Consumer Ombudsman recommends traders to make a cleardistinction between products, activities and company.The Marketing Practices Act and this Guidance also apply if a trader usesofficial foreign labelling schemes in his marketing. Where officiallabelling schemes apply in other EU or EEA countries which satisfyequally stringent requirements as those made of official Danish labels, theConsumer Ombudsman will as a basis consider such schemes on an equalfooting with the Danish schemes.10.3 Private, generally recognised labelling and certification schemesFor schemes to be considered generally recognised, they must be well-documented and have been applied over number of years. Privatelabelling schemes, etc., may be recognised by different NGOs and semi-governmental organisations and developed in cooperation with publicauthorities or with the support of authorities. NGOs are non-governmental, legally constituted interest groups, etc., which pursuesocial aims and are financially independent of governmental andcommercial interests. Their aims include, for instance, consumerprotection, environmental protection, nature protection, sustainabledevelopment, ethical trade or protection of employees. Political parties,religious communities and trade organisations are not NGOs.According to the Consumer Ombudsman, this type of schemes shouldsatisfy the following conditions:- The body responsible for the labelling scheme must be clearlyidentified;- Relevant stakeholders must be involved in the development ofclear criteria;- The criteria must be established and reviewed on the basis of acomplete life cycle assessment of a product or an activity (‘cradleto grave’) and cover relevant categories of (environmental)conditions and impacts, etc., based on scientifically approvedcalculation methodologies, etc. (reference is made to clause 4 ofthe Guidance for a definition of life cycle and to clause 6.3); and- The scheme must be subject to independent third-party controls asregards the assessment and establishment of criteria as well as the

use of the label. The company’s self-inspection may form part ofthe overall control system.The principles of ISO 14020 and descriptions of ecolabel schemes (ISO14024) or ecolabels and declarations (ISO 14025)43may serve asinspiration for the development of private ecolabels, etc. Moreover, thelabel may not be likely to be confused with other labels, including labelsof official labelling schemes.10.4 Other private labelling schemes, etc.These may be labelling schemes, etc., adopted by a trade organisation ora trader’s private labelling scheme, etc. Traders must bear in mind thatthe use of many different private labelling schemes, symbols andcertificates may make it difficult for consumers to understand theirmeaning. This applies in particular to fields covered by official labellingschemes or certifications.If a trader or industry chooses to use own labelling schemes, symbols orcertificates for marketing purposes, the product or the trader must possessqualitative benefits compared with similar products or traders. Otherwise,the labelling may be misleading in itself. In addition, the ConsumerOmbudsman finds that clear criteria must be met to achieve and/or use alabel of a labelling scheme and that such label must not be likely to beconfused with other labels, including own labels of a labelling schemewith multiple ratings or labels of official labelling schemes. Reference isalso made to clause 10.1 above.11. Review of the GuidanceThe Guidance is reviewed when deemed necessary, but not later thanthree years after publication.

ANNEXLegal basisThe Danish Marketing Practices ActThis Guidance has been prepared on the basis of the Marketing PracticesAct44, specifically sections 1 and 3 of the Act.

Section 1.

(1) Traders subject to this Act shall exercise good marketingpractice with reference to consumers, other traders and public interests.(2) Marketing in respect of consumers’ economic interests may not bedesigned to significantly distort their economic behaviour.In the assessment of whether a marketing communication is covered bysection 1(1) it is important that the marketing does not violate taste,decency or cultural conditions falling within the concept of generalsociety. Examples include environmental and ethical claims that play onconsumers’ fear or ignorance.According to case law of the European Court of Human Rights, traders’commercial right to freedom of expression is protected by Article 10(1)of the European Convention on Human Rights45as a rule. TheConvention was incorporated into Danish law by Act No. 285 of 29 April1992 on the European Convention on Human Rights, cf. nowConsolidated Act No. 750 of 19 October 1998 as amended.It follows from Article 10(2)46that the freedom of expression may berestricted by law. Section 3 of the Marketing Practices Act is an examplethereof.

Section 3.

practice (marketing) containing false information and a commercialpractice omitting material information are both considered misleading.Pursuant to Article 6 (misleading actions), a commercial practice isregarded as misleading if it contains false information and is thereforeuntruthful or otherwise likely to mislead consumers in relation to specificelements listed in the Article, including the existence or nature of theproduct or its main characteristics.Pursuant to Article 7 (misleading omissions), a commercial practice isregarded as misleading if the trader in his marketing omits or hidesmaterial information or provides the information in an unclear,unintelligible, ambiguous or untimely manner.The Directive states that commercial practices are unfair in particular ifthey are misleading pursuant to Articles 6 and 7. This follows fromArticle 5 of the Directive.Consumers must be defined in accordance with Article 5 of the Directive,which refers to the average consumer. The benchmark is a reasonablywell-informed and reasonably observant and circumspect averageconsumer, taking into account social, cultural and linguistic factors. Theterm is not statistical.If a commercial practice is aimed at a particular group of consumers, themarketing is assessed in relation to an average member of that group. If itis a clearly identifiable group of consumers who are particularlyvulnerable to the practice or the underlying product because of theirmental or physical infirmity, age or credulity, the marketing is assessedfrom the perspective of an average member of that group.For the provision on misleading practices to apply, the marketing mustalso have a commercial effect which implies that the unlawful act mustinfluence or be likely to influence the consumer’s economic behaviour.This means that the marketing must be likely to influence the consumerto make an economic decision,e.g.,to purchase the product, that hewould not have made otherwise.If the trader communicates his marketing using a medium which imposeslimitations of space or time, these limitations and any measures taken bythe trader to make the information available to consumers by other meansmust be taken into account in deciding whether information has beenomitted. This follows from Article 7(3) of the Directive.

Incorporation of the Unfair Commercial Practices DirectiveThe European Union Unfair Commercial Practices Directive has beenincorporated into the Marketing Practices Act by Act No. 1547 of 20December 2006 amending the Marketing Practices Act and by ExecutiveOrder No. 1084 of 14 September 2007 on Unfair Business-to-ConsumerCommercial Practices, which both entered into force on 1 December2007.Executive Order on Unfair Business-to-Consumer CommercialPracticesIt is laid down in section 2 of the Executive Order that the forms ofmarketing listed in the Schedule to the Executive Order must beconsidered in any circumstances to be unfair in respect of business-to-consumer matters and are thus prohibited.The examples of unfair commercial practices listed as Nos. 1-4 of theSchedule are particularly relevant in relation to the marketing ofenvironmental and ethical claims:1) A trader claims that he has signed a code of conduct even thoughthat is not the case.2) A trader presents a quality certificate, quality label, etc., withouthaving obtained the required permission.3) A trader claims that a code of conduct has been approved by apublic authority or other authority even though that is not thecase.4)A trader claims that a trader (including his commercial practices)or a product has been approved or permitted by a public orprivate body even though that is not the case or makes a claim tothat effect without satisfying the conditions for obtaining suchapproval or permission.Provisions on punishmentAny violation of section 3(1) and (2) of the Marketing Practices Act andthe provisions of the Executive Order are punishable by a fine, unlessother legislation prescribes a more severe punishment, see section 30(3)and (5) of the Act. The Consumer Ombudsman may also bring actionswith a claim for prohibitory or mandatory injunctions and issueadministrative orders in cases where the legal position is clear.Other legislationCertain specific fields are subject to EU legislation and internationalconventions, etc., which have been incorporated into Danish law or applydirectly. Such regulation may be relevant to the interpretation of the

Marketing Practices Act and the requirements stated in this Guidance,e.g.,the Directive and Danish legislation on sustainable biofuels.Guidances and self-regulationFor the interpretation of section 1 of the Marketing Practices Act, moreinspiration is available in international guidances and self-regulatoryinstruments on the use of environmental claims, etc., in marketing, suchas•The unofficial European Union ‘Guidelines for Making andAssessing Environmental Claims’, report No. 67/94/22/1/00281(published by the European Commission, December 2000). TheGuidelines contain directions that accord with the internationalISO standard on self-declared environmental claims (ISO14021:199947);•COM(2007) 621 ‘Agenda for a sustainable and competitiveEuropean tourism’;•ISO/IEC and CEN/CLC standards and Danish standards publishedby Danish Standards; and•The Consolidated ICC Code of Advertising and MarketingCommunication Practice (adopted in 2006 by the InternationalChamber of Commerce (ICC)), containing rules in Chapter E onenvironmental claims in marketing communication. According tothe information available, the international standard ISO 14021 onenvironmental claims has been incorporated by reproduction andadaptation of selected parts of obvious relevance to marketingcommunication, while various technical rules have been omitted.In January 2010, the ICC published its ‘Framework forResponsible Environmental Marketing Communications’.As a rule, if a trader’s marketing accords with guidances and self-regulatory instruments similar to those listed above, the marketing will bepresumed not to violate section 1 of the Marketing Practices Act.

Executive Order No. 1084 of 14 September 2007 on Unfair Business-to-ConsumerCommercial Practices.Standards of the International Organization for Standardization (ISO), InternationalElectrotechnical Commission (IEC), European Committee for Standardization (CEN)and CENELEC (CLC).ISO 14040, ‘Environmental management – Life cycle assessment – Principles andframework’, and ISO 14044, ‘Environmental management – Life cycle assessment –Requirements and guidelines’.The definition of sustainability laid down by the Brundtland Commission has beeninterpreted in various contexts. The European Commission emphasises developmentwhich aims at the continuous improvement of the quality of life and well-being forpresent and future generations, see Communication from the European Commission tothe European Parliament, the Council, the European Economic and Social Committeeand the Committee of the Regions, COM(2008) 397 final version of 16 July 2008 on theSustainable Consumption and Production and Sustainable Industrial Policy Action Plan.Advertising agencies may incur criminal liability if they realise or should have realisedthat an advertisement, etc., implies a violation of the Marketing Practices Act. Anunpublished decision of the Danish Maritime and Commercial Court of 13 January 1993(IkeaA/S and Wibroe, Duckert & Partners A/S)is an example thereof. The publisher ofan advertisement booklet or the like (not covered by the Danish Media Liability Act, seeclause 5.3) is under a certain duty to review advertisements before they are published.The publisher may thus incur criminal liability for complicity in violation of theMarketing Practices Act where there has been a clear violation which should have beenestablished by the publisher, see as an example the Danish Weekly Law Reports, 1996,p. 209, Supreme Court (U1996.209/2 H).The use of CFC for insulation has not been permitted since 1 January 1994 and the useof CFC as a cooling agent in dual temperature refrigerators has not been permitted since1 January 1995. In the beginning of 1993, manufacturers of dual temperaturerefrigerators began marketing these products as CFC free. Their claim was substantiatedby documenting that the new replacement substances were more eco friendly as regardsthe impact on both the ozone layer and the greenhouse effect. Having regard to thegradual implementation of the prohibition of CFC, the Consumer Ombudsman decidedthat the use of ‘CFC free’ without reservations in the transition period in 1994 couldprobably not be regarded as misleading when the statement evidentially referred to factsthat went beyond the requirements provided by law. Use of the statement was thereforepermitted in 1994. At the same time, the Consumer Ombudsman recommended thattraders include in information material a brief notice stating that the use of CFC for76543

insulation was illegal and that the manufacturer already at that time satisfied the futuresupplementary prohibition of the use of CFC as a cooling agent (Case No. 1993-411/5-24).It appears from clause 6.5.1 of ISO 14021 ‘Environmental labels and declarations –Self-declared environmental claims (Type II environmental labelling)’ that self-declaredenvironmental claims can only be considered verifiable if such verification can be madewithout access to confidential business information and that environmental claimsshould not be made if their verification requires inclusion of confidential businessinformation. Similar conditions are stated in the unofficial European Union ‘Guidelinesfor Making and Assessing Environmental Claims’, Report No. 67/94/22/1/00281(published by the European Commission, December 2000).In a case about a compact detergent with the following statement printed on thepackaging: ‘ENVIRONMENTAL INFORMATION: Reduced emission ofchemicals[…]’, the Consumer Ombudsman expressed the opinion that the use of visualeffects on packaging, etc., which convey or must be regarded as likely to convey theoverall impression to consumers that the product has a smaller environmental footprintmust be capable of being substantiated according to the same rules as apply to the use ofgeneral environmental statements. The dominant colour of the packaging was green andimagery depicting a landscape with a bright, shining sun was placed in connection withthe information which evoked associations of a product without any material impact onthe environment (Case No. 1993-444/5-6).Traders must be aware that referring to ‘the Swan’ and ‘the Flower’ in the marketingof the underlying product is not permitted, unless the product is covered by a validlicence issued by Ecolabelling Denmark.The Consumer Ombudsman expressed the opinion in a case that certification as anorganic farmer and permission to use the ‘State-Controlled Organic’ label to marketproducts implied that the products were considered to have been produced by methodsthat were gentler on the environment than traditional production methods. TheOmbudsman assumed that consumers in general perceived organic products as‘environmentally friendly’ and found that, based on the current rules on organic farmingand the marketing of organic agricultural products, producers may use more generalenvironmental statements in their marketing (Case No. 1995-7121/-15).Reference is made to the Danish Act on Organic Agricultural and AquaculturalProduction (økologiloven) (Consolidated Act No. 196 of 12 March 2009), in particularsection 2(ii) on the object of the Act which contains the following provision:‘[The object of the Act is][…](ii) to protect consumers’ interests and accommodate consumers’ demand for productsmanufactured by means of processes with special focus on the environment, nature,biological diversity and the health of plants, animals and humans and animal welfare,[…]’.12111098

See Regulation (EC) No. 1272/2008 of the European Parliament and of the Council of16 December 2008 on classification, labelling and packaging of substances and mixturesand Executive Order No. 329 of 16 May 2002 on Classification, Packaging, Labelling,Sale and Storage of Chemical Substances and Products andwww.mst.dk.Advertisements for computers carried the statement: ‘ENVIRONMENT, PLEASE’. Italso appeared from the text that the advertised models satisfied stringent environmentalrules on PC workstations which had been introduced by the European Union. Furtherdown, it was stated in the advertisement that the type of environment referred to wasworking environment. In the opinion of the Consumer Ombudsman, when reading theword ‘environment’ the recipient of the message would immediately think of thephysical, natural environment (soil, air and water) and not working environment. Usingthe word environment about working environment was therefore misleading (Case No.1993-4031/5-79).The Danish Environmental Protection Agency found that the statement ‘Natural gasdoes not pollute’ was not correct as natural gas contributes to pollution,i.a.,by emissionof nitrogen oxides. The company argued that the statement ‘Natural gas is clean energyand not a burden on the environment like oil’ was justified as natural gas must beconsidered one of the cleanest forms of energy as regards pollution and taking intoaccount the fact that natural gas is clean to work with. The Consumer Ombudsmanexpressed the opinion that the slogan was a very general statement that natural gas isnon-polluting, but as that is not the case, the use of the statement was a violation ofsection 2(1) (now section 3(1)) of the Marketing Practices Act (Case No. 1992-324/5-36).Cosmetics are defined in accordance with section 3 of Executive Order No. 422 of 4May 2006 on Cosmetic Products: ‘For the purpose of this Executive Order, cosmeticproducts means any chemical substance or product designed to be used in physicalcontact with different external parts of the human body (skin, scalp hair and other hairgrowth, nails, lips and external genitalia), the teeth and mucous membranes of the oralcavity exclusively or mainly to clean them and perfume them, to change theirappearance, to protect them or to keep them in good condition, or to correct body odour.Schedule 1 provides an indicative list of products regarded as cosmetic substances.’For example, Commission Decision of 9 July 2009 establishing the ecological criteriafor the award of the Community Ecolabel for textile products (notified under documentnumber C(2009) 4595) (Text with EEA relevance) (2009/567/EC).It follows from recital No. 1 of the preamble to Council Regulation (EC) No.834/2007 of 28 June 2007 on organic production and labelling of organic products andrepealing Regulation (EEC) No. 2092/91 that organic production is an overall system offarm management and food production that combines best environmental practices, ahigh level of biodiversity, the preservation of natural resources, the application of highanimal welfare standards and a production method in line with the preference of certainconsumers for products produced using natural substances and processes.1817161514

In this respect regard has been had to section 3 of the Act on Organic Agricultural andAquacultural Production (Consolidated Act No. 196 of 12 March 2009), which laysdown that in connection with the administration of the Act special focus must be had onsafeguarding the credibility and reputation of organic products and production withconsumers. It appears from the explanatory notes to the provision that this overallconsideration of credibility will generally apply in connection with the administration ofthe Act, including in laying down general rules under the Act, establishing guidancesand standards as the framework and guidelines for the authorities’ practice and inmaking specific decisions under the Act. Accordingly, although the organic label cannotbe used for textiles and cosmetic products under the Act on Organic Agricultural andAquacultural Production, the Consumer Ombudsman finds that importance should alsobe attached to this overall consideration in the determination of the proportion of rawmaterials/ingredients originating from certified organic production.Council Regulation (EC) No. 834/2007 of 28 June 2007 on organic production andlabelling of organic products and repealing Regulation (EEC) No. 2092/91: ‘at least 95% by weight, of its ingredients of agricultural origin are organic’. It appears fromsection 1(1)(i) of Executive Order No. 1053 of 6 September 2010 on the Use of theOrganic Control Label (Ø-label) on Organic Agricultural Non-Food Products:‘Agricultural products to be used for non-food purposes may be labelled with theOrganic Control Label (Ø-label) provided that at least 95 per cent by weight of allingredients in the product are produced according to the production provisions ofCouncil Regulation (EC) No. 834/2007 of 28 June 2007 on organic production andlabelling of organic products and repealing Regulation (EEC) No. 2092/91 (CouncilRegulation) and Executive Order on Organic Agricultural Production, etc. (ExecutiveOrder on Organic Production)’.When providing documentation that the ingredients/raw materials used are of certifiedorganic origin, the principles laid down in Articles 9, 32 and 33 of Council Regulation(EC) No. 834/2007 of 28 June 2007 on organic production and labelling of organicproducts and repealing Regulation (EEC) No. 2092/91 and Article 66 of CommissionRegulation (EC) No. 889/2008 of 5 September 2008 laying down detailed rules for theimplementation of Council Regulation (EC) No. 834/2007 on organic production andlabelling of organic products with regard to organic production, labelling and controlmust be observed.However, if the product contains a large amount of water, it may not make sense torefer to the product as organic, and the designation may therefore become misleadingbased on an overall assessment. Due to the lack of case law in this field, however, thespecific water content accepted in products cannot be determined, but according to theConsumer Ombudsman, the guiding principle of this assessment will be that at least20% of the entire product (i.e., including added water) consists of certified organic plantand/or livestock ingredients. The Consumer Ombudsman intends to invite the relevantparties to discuss the matter when more experience and case law have been obtained inthis field. If the trader is in doubt as to whether the water content in the cosmetic productis too large for the product to be referred to as organic, the Consumer Ombudsman222120

recommends instead that the trader states the percentage content of organic rawmaterials/ingredients in the product (added water not included).The Consumer Ombudsman acknowledges that the processing may reduce theproportion of organic raw materials/ingredients to less than 95% in the finished product.However, the processing must not imply that the organic content is reduced to anunnecessary extent, and the finished product must contain a significant proportion oforganic substances. At present, however, there is no case law governing these matters.The Consumer Ombudsman therefore intends to invite the relevant parties to discuss thematters when more experience and case law have been obtained in this field. The traderwill always be entitled to state the percentage content of organic rawmaterials/ingredients in the product (added water not included).2423

Special rules on cosmetic products have been laid down in Executive Order onCosmetic Products (Executive Order No. 422 of 4 May 2006), which will be replaced byRegulation (EC) No. 1223/2009 of the European Parliament and of the Council as from11 July 2013.The distributors’ advertisement did not state that the savings obtainable by using thenew washing machines presupposed that clothes were tumble dried. Because themarketing material did not state that part of the savings was to be obtained through lesstumble drying (due to less water remaining in the clothes as a result of higher spin-drying speed in new washing machines), the court found that the savings stated weremisleading and an unfair omission of information (Case No. 1992-441/5-9 and Maritimeand Commercial Court judgment of 18 November 1994, case P 3/93).Traders must be aware that referring to ‘the Swan’ and ‘the Flower’ in the marketingof the underlying product is not permitted, unless the product is covered by a validlicence issued by Ecolabelling Denmark.Executive Order ratifying the Kyoto Protocol of 11 December 1997 to the UnitedNations Framework Convention on Climate Change, Executive Order (InternationalInstrument) No. 35 of 27 October 2005.29282726

JI is the abbreviation of Joint Implementation and refers to projects in industrialisedcountries which have made a commitment under the Kyoto Protocol to reduce theiremissions of greenhouse gasses.CDM is the abbreviation of Clean Development System. CDM projects are developedin countries which have not made a commitment under the Kyoto Protocol to reducetheir emissions of greenhouse gases.More information about the projects is available on the website of the Danish EnergyAgency atwww.ens.dk.It was misleading to market fake furs as ‘eco fur’ or ‘organic furs’. According to theadvertisers, the industry used the expressions about fake furs to indicate that the furswere animal friendly. The Consumer Ombudsman expressed the opinion that, accordingto the Marketing Practices Act, a product made of artificial materials must not bereferred to as organic or use the abbreviation ‘eco’. Organic production was described asthe science of the adaptation of living creatures to animal life conditions in relation tonature, climate, other organisms, etc. The Consumer Ombudsman observed that for aproduct to be referred to as organic it must be manufactured using natural raw materialsin a manner which leaves the smallest possible environmental footprint or which doesnot upset the ecological balance (Case No. 1993-615/5-5).Inspiration may be found in ISO 26000 ‘Guidance on social responsibility’, DS 49001‘Social responsibility management system’ and DS 49004 ‘Social responsibility’.A fruit producer had named his company ‘XX Ecofruit’ and published a leaflet on thefront page of which the word ‘environment’ was printed in large letters. The producerwas requested to submit an account of the general statement ‘environment’ in themarketing, including submission of a life cycle assessment of the production process.The producer was unable to provide such assessment as the production was based on so-called integrated production, which does not build on life cycle analyses. The ConsumerOmbudsman found that documentation had not been provided that the products weregrown and bred using production methods which could justify the use of generalenvironmental marketing statements (Case No. 1995-7121/5-15).373635343332

The Consumer Ombudsman received an inquiry concerning the labelling scheme‘Eco-Tex’. Textiles that satisfy a number of requirements of an ‘Eco-Tex Standard’ mayobtain a label to that effect. According to the information received, it was not anecolabel scheme or an organic labelling scheme as such. The scheme was based oncontrols at which analyses were made to confirm that the requirements of the maximumcontent of formaldehyde, chemical residues, pesticides, the preservative PCP and heavymetals and other requirements dictated by the standard had been met. When presentingthe text to the Danish version of the label, the Consumer Ombudsman expressed theopinion that a label of this nature should state in clear and unambiguous text and visualeffects what is controlled (Case No. 1993-610/3-3).

Article 10(1): ‘Everyone has the right to freedom of expression. This right shallinclude freedom to hold opinions and to receive and impart information and ideaswithout interference by public authority and regardless of frontiers. […]’Article 10(2): ‘The exercise of these freedoms, since it carries with it duties andresponsibilities, may be subject to such formalities, conditions, restrictions or penaltiesas are prescribed by law and are necessary in a democratic society, in the interests ofnational security, territorial integrity or public safety, for the prevention of disorder orcrime, for the protection of health or morals, for the protection of the reputation or rightsof others, for preventing the disclosure of information received in confidence, or formaintaining the authority and impartiality of the judiciary.’46