THE District Court of Amsterdam has found the greenwashing in advertising for KLM [Royal Dutch Airlines] to be illegal. This sets a major legal precedent with ramifications across the international aviation sector and for all companies advertising their commitment to the Paris Agreement.

The judge ruled that KLM’s claims suggesting that flying can be or is becoming sustainable, as well as advertising suggesting that its “offsetting” products reduce or compensate for the climate impact of flying are misleading and therefore unlawful.

KLM’s claims that it was “committed to the Paris Agreement climate goals” were also found to fall foul of the law, as claims about the feasibility of KLM’s targets paint “too rosy a picture”, given the limited measures the airline is deploying. This ruling will set a precedent for all companies promoting net zero commitments, and their public relations firms and advertising agencies should also take note.

Hiske Arts, campaigner for Fossielvrij, one of the campaign groups that brought the lawsuit, said: “Today’s judgment is a landmark victory in the fight against greenwashing. The significance of the Court’s decision is clear: companies are not allowed to claim they are tackling dangerous climate change when in reality they are fuelling the crisis. KLM’s ‘green’ marketing creates a misplaced trust that even if you are worried about the climate crisis, you can board a plane reassured you are not harming the planet. The judges have put an end to this harmful strategy to lull the public and politicians to sleep.”

Dutch campaigners Fossielvrij and Reclame Fossielvrij – with support from environmental law charity ClientEarth – filed the claim in July 2022, marking the first lawsuit worldwide to tackle aviation industry greenwashing. It alleged the airline’s marketing breached the EU Unfair Commercial Practices Directive.

Johnny White, lawyer at ClientEarth, said: “Companies that publicly advertise commitments to the climate goals of the Paris Agreement must now ensure that those claims are feasible and concrete, or risk losing in Court. This judgment is nothing short of a wake-up call for highly polluting industries and companies that try to sell the image of commitment to the Paris climate goals without having the plans to get there. It leaves the airline industry’s climate PR strategy dead in the water.”

‘Sustainable’ aviation fuels and ‘offsets

The Court said that the term “sustainable” to describe alternative aviation fuels (called SAF by the industry) is not concrete enough to be promoted as a promising solution to aviation’s emissions. Specifically, it found: “At the moment, SAF’s share in total fuel consumption (and hence CO2 emissions reduction) is still very limited due to various reasons. A more substantial share can only be expected in the distant future, and thus uncertain. The expression is therefore misleading.”

Ruling on KLM’s promotions for customers to ‘offset’ the climate impact of their flights by paying towards reforestation schemes, the Court also considered that “there is no direct link between customers’ tangible contribution and the impact of CO2 emissions from its flight”.

White added: “The truth has always been that ‘sustainable aviation fuels’ or ‘offsetting’ products risk justifying more emissions than they can ever save. All airlines and other companies making claims about their products’ environmental impacts that are based on offsetting should take heed from this ruling.”

KLM had eventually retracted the advertising claims challenged in response to the lawsuit. Therefore, the Court did not see the need to issue further orders sought by the claimants, and it found that a ban on future similar claims was too uncertain. The decision implies that public judgement itself should be enough. However, because the Court found mainly against KLM, it ordered the company to pay the claimants’ costs.

The organisations are calling for a tobacco-style ad ban on fossil-fuel based goods, citing the significant harm these products cause to people’s health and livelihoods through fuelling dangerous climate change.

Rosanne Rootert, campaigner at Fossielvrij Reclame, said: “Tackling greenwashing is currently a cat-and-mouse game. Just when one misleading campaign is stopped, ten more pop up. You can only react when the harm is already done: people have already seen the ads. A complete ban on fossil advertising, such as for air travel, is the only way to truly eliminate greenwashing by these companies. Lawsuits like this would then be unnecessary.”

The District Court of Amsterdam’s ruling is also likely to inform future cases. The issues within the lawsuit have already been taken up by the European umbrella consumer organisation BEUC in an EU-wide regulatory complaint denouncing misleading sustainability claims made by 17 European airlines.

Dimitri Vergne, Head of Energy and Sustainability at BEUC, said: “Technological solutions to decarbonise aviation won’t become a massive-scale reality any time soon, so airlines depicting flying as a sustainable mode of transport are simply fooling consumers.

“The Court’s decision recognises that green flying is a myth and marks a turning point for consumer protection against misleading aviation advertising. The rest of the airline industry should see the Court’s decision as a strong warning sign. They must stop greenwashing their activities right away, as we denounced to the EU authorities last year.”

* Source: ClientEarth