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Can Shell claim to be the Netherlands’ largest investor in green energy in its advertisements? At the start of this month a new Code on Sustainability Advertisement was adopted by the Dutch Advertising Code Committee (Stichting Reclame Code Comissie) – the self-regulation body that deals with rules on advertisements in the Netherlands. Over the past years, more and more cases on misleading environmental claims have come to the Committee, with big polluters like Shell and KLM being successfully urged to stop misleading campaigns. The new, updated rules follow the Dutch Consumer Authority’s introduction of Guidelines concerning sustainability claims and expressly anticipate the European proposal to amend the Unfair Commercial Practices Directive (UCPD) and the Consumer Rights Directive to empower consumers for the green transition through better information and protection against unfair practices. This blog zooms into the proposed new rules and argues that we need a different idea of behaviour to stop misleading advertisement in the field of sustainability.

The proposal

The proposal contains a number of major changes to the UCPD, the first being the addition of incorrect or confusing information on ‘environmental or social impact’, durability and reparability to the notion of misleading action under article 6(1). Next, the proposal introduces two new commercial practices to the list of misleading commercial practices in article 6 (2) UCPD:

  1. making an environmental claim related to future environmental performance without clear, objective and verifiable commitments and targets and without an independent monitoring system
  2. advertising as benefits for consumers characteristics that are considered as a common practice in the relevant market

Third, it introduces a new paragraph to article 7 on misleading omissions “Where a trader provides a service which compares products, including through a sustainability information tool, information about the method of comparison, the products which are the object of comparison and the suppliers of those products, as well as the measures in place to keep that information up to date, shall be regarded as material”. Finally, the proposal  introduces ten new commercial practices to the ‘blacklist’ of  practices that are always deemed as unfair, including among others “making a generic environmental claim for which the trader is not able to demonstrate recognised excellent environmental performance relevant to the claim”.

Consumer Choice(s) & Consumer Habits

The assumption central to the proposal is that the consumer receives incorrect or misleading information, as a result of which they make a different choice than if they had been provided with the correct (climate-related) information. The idea is that consumers do want to act sustainably, but are not prevented from – or anyhow hindered in – doing so by the claims and design of products and advertisements. The plans are clearly based on a classical economic model: consumers have certain individual preferences, on the basis of which they make choices to behave in a certain way. This ‘homo-economicus’ knows what he (qua “homo”) wants and knows how to get what he wants. These ideas, however, are not uncontested. Behavioural Economics, an influential body of scholarship argues that much of our behaviour is not made of choices perfectly calculated to meet some specific preferences; rather, we often act in a certain way simply because ‘we have always done so’ (and are still alive to tell).  Policy, then, ought to be designed in a way that enables people to match their behaviour to individual preferences more closely, for instance through ‘Nudges’. Such a model, however, still centres around an individual consumer who has his own preferences and who could make an ‘optimal’ choice in them.

Although such linear models – where the links between preferences, choices and behaviour are very attractive to policy makers, different scholarship claims that reality is much more complex. We often do not choose to consume at all (when we put on the television, do we choose to consume electricity?) nor are our preferences and attitudes ‘individual’. There are ways to conceptualise human behaviour without requiring individual preferences and choices by consumers as a precursor. For instance social practice theory holds that most (consumption) choices are part of social practices – the more or less organized activities, behaviours and statements that make up daily life. Social practices often consist of the integration of different types of elements: material elements, competences and meanings. For example writing this blog:

To write this blog I need certain materials like a computer, a desk to work at, an office chair, electricity and Microsoft Word. Moreover, to write a good blog you need certain competencies such as a grasp of the English knowledge, knowledge of writing in the format of a blog and workings with MS Word. Finally, writing this blog evokes certain meanings and images: I would like there to be a transfer of knowledge and interest and see this as a productive part of doing a PhD.

Practice theory sees daily life as consisting interconnected and temporally and spatially dispersed social practices such as working, commuting, eating and doing the laundry. We consume as part of our involvement in these social practices. Our choice to consume more or less sustainable products, thus, depends only to a relatively small extent on the information we receive. Far more important is what practices have become widespread and ‘normal’; those practices and its elements we encounter every day. The omnipresence of advertisements in modern societies facilitates these encounters, normalising carbon-intensive practices.

The influence of advertisements: From choice to habit?

Importantly, according to various strands of practice theory demand – or otherwise put consumer preferences – is not an apriori fact but something that is continuously constructed, through advertisement, public discourse, regulation and so forth. Taking such an approach changes the way in which we understand the influence of advertisements on our (collective) behaviour. Advertising has a much broader impact than just providing information to consumers: it (metaphorically) introduces certain materials, competences and meanings into our day-to-day life. Advertisements as such have become an integral part of our daily live and have had influence, above all, on the meanings that circulate in our day to day practices. They introduce and maintain (positive) images, stories and meanings attached to products and the practices these are used in. They normalize certain carbon-intensive practices such as flying, driving, eating meat and shopping cheap clothes. These practices are harmful, for the climate and for us (and others on this earth).

How then should we see the proposals by the commission. Here an interesting contribution comes from Clemens Kaupa. On the basis of various social science literature, he  states that fossil advertising, even outside the sustainability claims that are made, could be considered as always misleading to consumers because it presents fossil fuels as acceptable and normal. Moreover, the complexity of understanding the claims made by big fossil fuel companies on their sustainability warrants against taking a soft approach to these products and companies. Kaupa mentions two ways in which misleading can be prevented, namely 1) by prohibiting references to the sustainability and social benefits of fuels in advertising and 2) by placing warnings about the risks of using fossil fuels on fossil fuel packaging (similar to tobacco). The best option, however, ,  would be in his view to intervene by legislation and remove all fossil advertising from the public space, because this retains its status as a ‘normal’ part of daily life.

A way forward?

If we take social practice theories seriously then we need to be stricter in our approach to advertising carbon-intensive products and companies. We already have experience with other harmful products such as tobacco and alcohol, these can serve as inspiration for the future. Whilst the proposed amendment of the UCPD will be able to prevent companies from ‘greenwashing’ their products, this may not be the most profound way in which carbon-intensive industries have an influence on our consumption behaviour. As a practice-theoretical approach teases out and following Kaupa, advertising for seriously polluting products could be seen as inherently misleading where they try to promote any environmental and social benefits of their products. Perhaps we should go even further and decide to not have any advertising of these products in the first place. To get there we would need further regulation of carbon-intensive products and companies (from warnings on packaging to bans) with the aim  of de-normalizing these practices. We will only start being green, when dirty practices stop being normal.
(Photo: Quick PS)