Dutch court rules KLM advertising campaign was “greenwashing”

A recent judgment by the District Court of Amsterdam has determined that an advertising campaign for Sustainable Aviation Fuel (SAF) and other environmental measures by Dutch flag carrier, KLM, painted an overly optimistic picture of the effects of its activities on the environment, more commonly referred to as “greenwashing.”

What is greenwashing?

Greenwashing refers to statements that mislead the public about how environmentally friendly a particular product or company is.

The United Nations defines greenwashing as “misleading the public to believe that a company or other entity is doing more to protect the environment than it is.”

Prominent examples of greenwashing include:

a major recycling company allowing its logo to be used on products, which frequently were not recyclable and ended up in landfill
a UK smoothie brand alleged to be overstating the environmental benefit of its products in an advertising campaign, leading to the UK’s Advertising Standards Agency banning the adverts
the Volkswagen emission action, involving an advertising campaign for low emissions vehicles, although the vehicles were alleged to have been developed with devices which functioned to artificially reduce the exhaust emissions produced during emissions testing.

Greenwashing has been described by the UN as a major, global problem, which undermines efforts to combat the climate crisis through credible solutions.

KLM’s advertising campaign

KLM launched its “Fly Responsibly” campaign in December 2021, focused on the interplay between aviation and sustainability.

The campaign highlighted initiatives undertaken by the Dutch carrier towards greater sustainability, including fleet renewal, operational improvements, the use of SAF and carbon offsetting schemes. It included TV advertisements, online banner ads and billboards.

The campaign featured 19 statements of how the airline was reducing its environmental impact, including a billboard advertisement at Amsterdam’s Schiphol Airport featuring a young child on a swing, looking towards a clear sky. Other adverts contained imagery of futuristic aircraft and green leaves.

Environmental groups were highly critical of the campaign, leading to a complaint to the Dutch Advertising Code Committee. KLM withdrew the campaign in April 2023 following the issue of Court proceedings.

Proceedings before Amsterdam District Court

In April 2023, proceedings were issued against KLM in the District Court of Amsterdam by an environmental campaign group known as Fossielvrij (Fossil Free).

In the Writ lodged with the Court, it was claimed that the advertisements created the impression that flying with KLM was more sustainable, on account of the use of SAF and reforestation schemes, as well as other measures. It was alleged that this was false, largely due to the growth aims of KLM and commercial aviation generally. The Claimant included significant scientific evidence in support of its contention that many of these measures were not as environmentally-friendly as was being implied by the advertisements. It was also alleged that many of the solutions being proposed, such as new designs of aircraft by Airbus and Boeing, lay far in the future and were not an accurate representation of flying today.

It was argued that KLM’s campaign breached provisions of both the Dutch Civil Code and the EU’s Unfair Commercial Practices Directive and was a misleading representation of the impact of commercial aviation, specifically KLM’s activities, on the environment.

The Claimant sought a declaration: that the adverts were unlawful; that KLM rectify the claims; that it be prohibited from making such claims in the future; and, that a warning text be included on KLM’s product and website.

Judgment

On 20 March 2024, the District Court issued its judgment, ruling substantially in favour of the Claimant.

Amongst the Court’s reasoning, it was highlighted that 15 of the 19 claims made by KLM in the advertising campaign were misleading and therefore illegal. In particular, the Court found that KLM had painted “too-rosy a picture” regarding the measures it was taking to reduce emissions. It was found that these measures only marginally reduced environmental impact and gave an incorrect impression that flying with KLM is, or is becoming, sustainable.

Whilst the Court did issue the requested declaration, it did not require KLM to issue a rectification, nor did it prohibit KLM from advertising its measures. It did, however, require that KLM be “honest and concrete” in its advertising going forward.

Comment

The judgment arguably sets a benchmark for how airlines can advertise their sustainability initiatives, particularly in the EU.

However, this is unlikely to be the last of these cases, and regulators and lobby groups alike are likely to be increasingly cognisant of environmental claims in advertising campaigns. Indeed, 17 airlines are currently the subject of a regulatory complaint to the European Commission for allegedly misleading climate-related claims.

Airlines, and companies generally, ought to be cognisant of overstating the impact of their measures and ensure that advertising complies with national and supranational laws, including ensuring that any assertions can be supported by evidence adducible in civil proceedings.

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