Greenwashing and influencer marketing: a now structured legal framework, with controls set to intensify.

ADEME (the French Agency for Ecological Transition) has just published the new edition of its Guide to Responsible Influence, dedicating an entire chapter to combating greenwashing in commercial collaborations. This editorial choice is not insignificant. It acknowledges a development that practitioners of advertising and influencer marketing law have been observing for several months: environmental claims disseminated by content creators are now a fully-fledged area of vigilance, and no longer a blind spot in the sector's regulation.

Few influencers have grasped the full implications. Few agencies genuinely integrate into their briefs the prior checks that the regulatory framework requires. Few brands measure the joint liability exposure they face. It is therefore useful, based on the ADEME Guide and applicable legislation, to outline the legal regime for greenwashing as it applies to commercial collaborations on social media, to identify the specific practices that are now prohibited or strictly regulated, and to explain the liability regime attached to them.

I. A recent, dense and still largely unknown legal framework.

The law applicable to environmental claims in commercial communications cannot be reduced to a handful of articles. It results from a normative accumulation that has progressively taken shape in recent years, driven by three major pieces of legislation to which a European directive currently being transposed will soon be added.

A. The legacy of the AGEC and Climate and Resilience Acts.

The first major advance came from Law No. 2020-105 of February 10, 2020, known as the AGEC Act, on combating waste and promoting a circular economy. Its provisions were codified in Article R541-230 of the Environmental Code, the terms of which are unambiguous: "_It is prohibited to include on a product or packaging, when new and intended for the consumer, the terms 'biodegradable', 'environmentally friendly' or any other equivalent environmental claim._"

The prohibition is absolute and admits no exception for the medium concerned, namely the product itself and its new packaging.

But the text does not stop there.

Its spirit, conveyed by ADEME doctrine, is that vague, imprecise claims likely to mislead the consumer about the absence of impact or the beneficial nature of a product for the environment are strictly regulated on all other communication media, including publications disseminated on social networks.

On these media, the use of expressions such as 'eco-friendly', 'good for the planet', 'respectful of the planet', 'non-polluting' or 'biodegradable' is only tolerable if backed by concrete, verifiable evidence covering the entire life cycle of the product. Otherwise, these claims fall within the scope of misleading commercial practices under Article L121-2 of the Consumer Code.

Article L121-2 of the Consumer Code, as amended by the law of August 22, 2021, and the ordinance of December 22, 2021, expressly targets false or misleading claims relating in particular to the '_environmental impact_' of the good or service, as well as '_the scope of the advertiser's commitments, particularly in environmental matters, the nature, process or reason for the sale or provision of services._'

The wording is deliberately broad. It enables both the administration and the courts to address communications about a product ('this cream is biodegradable') as well as those about the brand's overall approach ('we are committed to reducing our footprint').

Law No. 2021-1104 of August 22, 2021, on combating climate change and strengthening resilience to its effects, known as the Climate and Resilience Act, continued building the framework. It introduced a specific regime for the 'carbon neutrality' argument in advertising, codified in Article L229-68 of the Environmental Code. It also placed environmental claims at the heart of the fight against ecological disinformation.

B. The decisive contribution of the European 'Empowering Consumers' Directive.

To this national edifice is now added a European dimension that strengthens and clarifies the contours of applicable law. Directive (EU) 2024/825 of the European Parliament and of the Council of February 28, 2024, known as the 'Empowering Consumers' or 'Green Claims' Directive, was adopted as part of the Green Deal and aims to '_empower consumers for the green transition through better protection against unfair practices and better information._'

This directive formalises several definitions whose absence was previously a real obstacle to legal certainty: those of environmental claim and sustainability label. It strictly regulates the use of these labels and prohibits or strictly regulates numerous generic claims.

In particular, and this is an essential point, it provides that carbon neutrality claims for products and services that rely exclusively on carbon credit offsetting mechanisms may no longer be presented to the consumer.

II. High-risk practices in commercial collaborations on social media.

Based on this framework, three families of specific practices now require particular vigilance when an influencer enters into a commercial collaboration with a brand, whether on Instagram, TikTok, YouTube, Snapchat or any other social network.

A. Vague claims and the requirement for concrete evidence.

The first and most frequent difficulty lies in the use, in the script or caption of a post, of generic terms: 'eco-friendly', 'good for the planet', 'environmentally friendly', 'biodegradable', 'non-polluting', 'zero impact'. These terms are attractive for a brand seeking to build a virtuous narrative. They are also easier to manipulate than a figure or certification. But they constitute a zone of maximum danger.

On a product or its packaging, as noted above, their use is purely and simply prohibited by Article R541-230 of the Environmental Code. On a social media post, it is only tolerated if backed by tangible, public evidence that can be verified by the audience.

A life cycle analysis, a label recognised by ADEME, a publicly accessible CSR report, an independent certification: these are the elements that alone protect the communication from the risk of reclassification as a misleading commercial practice.

This has an immediate practical consequence. When an influencer receives a brief containing one of these expressions, they can no longer simply copy and paste. In accordance with ADEME's recommendations, they must request supporting documentation from the brand, verify that these documents cover the entire life cycle of the product and not just a partial characteristic, and, in case of doubt, refuse the collaboration or request a reformulation of the claim. The practice of blindly reproducing the brand's brief, once commonplace, is now risky.

Vigilance also extends to visual elements. Point 8.1 of the ARPP's sustainable development recommendation states that visual or audio elements must be used in proportion to the ecological argument, and that a natural setting or visual evoking nature must not mislead about the actual environmental properties of the product.

A green background, a leaf emoji, a forest setting: these are not prohibited elements per se, but they can contribute to the classification of a misleading environmental claim when they artificially amplify a message that is not based on any concrete evidence. This is the subtlety of greenwashing through imagery, which the ARPP regularly tracks in its annual reports and which is beginning to feed the decision-making practice of its ethics panels.

B. The strictly regulated carbon neutrality argument.

The second high-risk practice concerns the 'carbon neutrality' argument, particularly widespread in the air transport, tourism and automotive sectors. How many posts praise a flight, vehicle or trip presented as 'carbon neutral' or 'carbon offset'? The Climate and Resilience Act put an end to this convenience.

Article L229-68 of the Environmental Code, as in force since August 25, 2021, is clear: "_It is prohibited to claim in an advertisement that a product or service is carbon neutral or to use any wording of equivalent meaning or scope, unless the advertiser makes the following elements readily available to the public: 1° A greenhouse gas emissions assessment integrating the direct and indirect emissions of the product or service; 2° The approach through which the greenhouse gas emissions of the product or service are primarily avoided, then reduced and finally offset. The greenhouse gas emission reduction trajectory is described using quantified annual progress targets._"

This requirement is formidable in its precision. It implies that most brands will never be able to seriously claim the carbon neutrality label, or will only be able to do so at the cost of a transparency they are not always willing to assume. Added to this is the expert opinion published by ADEME, according to which carbon neutrality can only be achieved at the level of a territory, a country or the entire planet, but never at the level of a product, a service or even an organisation. ADEME therefore recommends, in practice, abandoning the 'carbon neutral' label.

Finally, the 'Empowering Consumers' Directive of February 28, 2024, prohibits carbon neutrality claims for products and services when they rely exclusively on carbon credits, regardless of the conditions set by French law. The noose is tightening inexorably. Creators who today agree to promote a trip or flight as 'carbon neutral' without requiring their partner to produce the documentation required by law are exposing themselves to future legal proceedings whose scope they can no longer claim to be unaware of.

III. Shared liability among all actors in the chain.

The liability regime applicable to environmental claims disseminated as part of a commercial collaboration is today considerably broader than is commonly imagined. Law No. 2023-451 of June 9, 2023, aimed at regulating commercial influence and combating influencer abuses on social media, introduced a major innovation in influence law.

Article 8, III provides that '_the advertiser, its agent where applicable, and the person carrying out the commercial influence activity and, where applicable, the influencer agent activity, are jointly and severally liable for damages caused to third parties in the performance of the commercial influence contract binding them._'

This joint liability is a break from the past. Before its entry into force, the creator's liability could be pursued individually, while the brand sheltered behind the status of passive advertiser. This compartmentalisation no longer exists.

A consumer who considered themselves misled by a false environmental claim disseminated by an influencer may take action interchangeably against the influencer, their agent, the influence agency or the advertiser.

In addition to this joint civil liability, on the criminal side, the classic arsenal of misleading commercial practices, provided for in Article L132-2 of the Consumer Code, applies, with the maximum penalty significantly increased when the offence relates to environmental claims.

Conclusion.

Environmental claims in commercial collaborations disseminated on social media today constitute a legal terrain that is at once dense, recent and under close scrutiny. The combination of the AGEC Act, the Climate and Resilience Act, the June 9, 2023 Act and the 'Empowering Consumers' Directive creates a regime where the margin for error is shrinking rapidly. Content creators who continue to reproduce their partners' briefs without prior verification, agencies that fail to structure their validation processes, and brands that hope liability will be borne solely by the influencer are exposing themselves to a risk whose full consequences they have yet to grasp.

The Guide to Responsible Influence that ADEME has just published is therefore timely. Beyond its educational role, it provides sector professionals with an operational compass: a checklist of prior verifications, a framework for analysing claims, and a method for distinguishing a genuine commitment from a marketing posture.

Practitioners of influence law will find it a useful tool for supporting their clients, whether creators, agencies or advertisers, in designing legally secure campaigns.

The fight against greenwashing is no longer a matter of morality or posture.