In Switzerland, there are currently no specific legal norms that explicitly regulate the admissibility of green claims. Instead, the general law on fair competition is used to assess the legality of a claim. It requires that all forms of communication by companies, including green claims, must be truthful. This means that claims must therefore be correct and can not be misleading. In case of doubt, the admissibility of a green claim is a matter of discretion. To date, there is little case law in Switzerland that provides clear guidance on when a green claim is permissible and when it is not. However, this area is in flux and is expected to change in the medium term.
In the context of social media, it is particularly important to comply not only with the legal framework of one's own country, but also with that of other jurisdictions. This is because the content on the platforms is available worldwide and reaches users from different jurisdictions. For example, in contrast with Switzerland, the EU has already enacted various specific regulations on green claims.
Another difficulty is that almost every platform treats the topic of "green claims" differently. However, the platforms often do not have specific guidelines on the use of green claims. Yet, they reach billions of people all over the world.
In addition, the lack of a basis for a green claim is less obvious and unambiguous compared to, for example, trademark or copyright infringements on social media. This makes it more difficult for third-party companies, consumers and platforms to determine when a claim is misleading or false and therefore inadmissible.
Three ways to check
What can one do if you one comes across a green claim that is misleading or untrue? In Switzerland, there are three courses of action. The most cost-effective option is to lodge a complaint with the Swiss Fairness Commission. The Swiss Fairness Commission is an institute of the advertising industry. It is not a public law body but operates on a private law basis. The number of complaints to the Fairness Commission in connection with green claims has increased. It assesses the claims relatively quickly and therefore offers an efficient solution. However, the Fairness Commission can only make recommendations, which are not legally binding and therefore can also not be legally enforced.
The second, but significantly more cost-intensive option, is to initiate proceedings before a civil court by filing an application for precautionary measures or by filing a direct action. As part of a precautionary measure or in ordinary proceedings, the plaintiff can attempt to remove a misleading green claim. In addition to the omission or removal of the claim, the plaintiff can claim for damages. However, it may be difficult to prove such damages. For example, a competitor affected would have to prove that it would have sold its own product better if the supplier had not used the green claim.
The third option for taking action against misleading green claims is to initiate criminal proceedings by filing a criminal complaint. This can, however, demand significant effort, as the applicant may have to take part in several phases of the proceedings in addition to simply submitting a complaint. Furthermore, there is no guarantee that such proceedings will actually be initiated by the criminal prosecution authorities.
Therefore, filing a civil lawsuit appears to be the most effective option when it comes to the actual enforcement and execution of claims.
In general, green claims are becoming increasingly important. It is therefore to be expected that they will be more strictly regulated in Switzerland in the future.
