Description
August 7 2024
The fossil fuel industry, such as airlines and car companies, can freely promote themselves and their extremely harmful products - as long as their ads are not misleading. Misleading ads are prohibited by law and you can challenge them in court - as Reclame Fossielvrij successfully did in the KLM case. But there is no law prohibiting companies from promoting environmentally destructive products. Or is there?
In our quest to ban fossil advertising, Fossil Free Advertising (Reclame Fossielvrij) came across a promising new angle: the EU already has a (partial) ban on fossil advertising.
Ever since 1989, there has been an EU directive - the Audiovisual Media Services Directive (AVMSD), which states that advertising on TV and video sharing platforms must not "encourage behavior prejudicial to health or safety or grossly prejudicial to the protection of the environment” (Article 9 sub 1 III and IV). We thought: “If this is not about fossil advertising, then what is it about?”
By selling environmentally damaging products - such as flights or all-inclusive holidays - fossil fuel companies, airline companies and cruise companies are damaging the environment. Their advertising is meant to sell more. With this line of reasoning, Advertising Fossil Free lodged a complaint against the airline TUI at the Dutch Advertising watchdog.
Unfortunately, the advertising watchdog ruled against us. This means that - in the midst of a climate crisis - travel organizations may continue to advertise trips that cause a lot of climate damage without hindrance.
According to Fossil Free Advertising, the advertising watchdog is missing out on an opportunity to protect public health and the environment with this ruling: “Holiday destinations are quite literally on fire as a result of the climate crisis. But every day people are bombarded with commercials for air travel that fan the flames.”
According to Reclame Fossielvrij, the Netherlands is ignoring EU-regulation. The campaign group is looking at all possibilities to actually enforce this European ban, possibly through court.
This problem also exists in other Member States. This provision of AVMSD has been largely overlooked, both at the EU level and by the EU member states. Many EU countries have implemented this provision through self-regulation, leading to ineffective implementation of this EU law.
Reclame Fossielvrij is launching a crowdfunding to cover legal costs. Help us out by donating here
Want to know more about the EU law and legal implications? Check out the Dutch website (translation button available):
- All information on the sleeping law that bans fossil ads on the website of Reclame Fossielvrij
- Promoting the Apocalypse? The Legality of a Ban on Advertising for Fossil Fuels and Other Carbon-Intensive Products under European Law by Clemens Kaupa
What happened earlier?
April 4th 2024
First-ever advertising complaint: flight advertising TUI encourages environmentally damaging behaviour
Advertising may not incite behaviour that is harmful to health or highly damaging to the environment, the Dutch Advertising Code states. For the first time, the Dutch advertising watchdog (Reclame Code Commissie - Advertising Code Committee) is handling a complaint about this. A ruling in this case could have far-reaching consequences for other advertisements that are harmful to the environment and health.
The Advertising Code Committee (RCC) is often in the news with complaints about misleading sustainability claims (greenwashing), such as advertisements by Shell, KLM or Primark. On 4 April, the RCC will handle a different kind of complaint for the first time, based on a recent amendment to the Advertising Code. According to that amendment, advertisements may not encourage behaviour that is harmful to public health and highly damaging to the environment (see note below).
Advertising Fossil-Free filed a complaint against a TUI television ad for flight holidays to the Turkish Riviera based on this provision. According to Advertising Fossil Free, this advertisement incites harmful behaviour, as flying causes a lot of climate and health damage.
Advertising Fossil Free is assisted in the complaint by lawyers from Walden Grene and Ecolytico. Lawyer Berber Brouwer (Walden Grene): "If the RCC follows our argument, this could have major consequences for other advertisements that incite behaviour that is harmful to the environment or health. Think, for example, of advertisements for cruise travel, fast fashion or a fast food beef burger." Advertising Fossil Free has filed a similar complaint about SunWeb's cruise travel advertisements. The organisation does not rule out other complaints to follow.
The TUI commercial was among those shown in the commercial break preceding the eight o'clock news. Rémi ter Haar (campaigner Advertising Fossil-Free): "Every day in the news we see the far-reaching consequences of climate disruption; deadly heatwaves, floods, forest fires, crop failures. But before and after that same newscast, we are seduced by advertisements for air travel that get us into even deeper trouble. There is no way to explain that anymore, is there?"
Note on legal matters
Article 2 of the Nederlandse Reclame Code (NRC - Dutch advertising standard) states that advertising should be in accordance with the law, truth, good taste and decency. As of 1 July 2023, the Advertising Code Foundation has made a number of changes, including an addition to the explanatory note to Article 2 NRC. According to the explanation, Article 2 NRC also includes the obligation that advertising may not incite behaviour that is harmful to health or safety or highly harmful to the environment. According to the Advertising Code Foundation, this is a repair of existing EU obligations (Audiovisual Media Services Directive, Article 9 under paragraph 1 C iii and iv) that were no longer explicitly mentioned in the new Sustainability Advertising Code in the NRC.