The legality of climate-related marketing claims by the aviation sector under EU Directive 2005/29/EC

This research report by Clemens Kaupa accompanies the complaint by BEUC at the European Commission about misleading advertising by 17 airlines.

Executive summary
Airlines and other actors of the aviation sector such as airports frequently promote air travel with environmental marketing claims that relate, directly or indirectly, to the climate impact of air travel. While climate-related marketing claims by the aviation sector differ significantly in their details, they typically all rely on one or more of the following propositions: (1) that greenhouse gas (GHG) emissions from aviation could be “offset”, “compensated” or “neutralized” through the use of offset credits; (2) that the use of alternative aviation fuels (biofuels and synthetic fuels) is “sustainable”, as expressed in the often-used term “sustainable aviation fuel”; and (3) that air travel is or can be “sustainable”, “responsible” or “green”, in either
relative or absolute terms. Climate change is caused by the emission of greenhouse gases (GHG). To meet the objective of limiting global warming to 1.5-2°C as prescribed by the Paris Agreement, deep GHG emission reductions are required within this decade, and in all sectors. The aviation sector is a significant emitter of GHG, and emissions are projected to grow significantly over the next decades. The aviation sector is “difficult to decarbonize”, which means that there are no technological solutions available to significantly reduce greenhouse gas (GHG) emissions in the short- and medium term, apart from flying less.

A growing number of judgments and decisions by advertising authorities shine light on the legality of climate-related claims made by the aviation sector, especially in regard to the use of offset credits. They show, in particular, that climate-related marketing claims based on carbon offsets have a high risk of deceiving consumers. EU Directive 2005/29/EC (the Unfair Commercial Practices Directive - “UCPD”) prohibits marketing claims that are factually incorrect or otherwise deceptive for the average consumer. It applies to claims that are liable to influence the average consumer’s commercial choices. This is typically the case for climate-related marketing, as consumers become increasingly concerned about the matter. This study comes to the following three conclusions on the legality of the main propositions typically underlying climate-related marketing claims by the aviation sector:

1.
The claim that offset credits could “offset”, “compensate” or “neutralize” emissions from aviation is factually incorrect, and therefore misleading. The average consumer is liable to understand compensation claims as meaning that the climate harms associated with CO2 emissions from aviation are fully counterbalanced or undone. However, compensation claims do not stand up to scientific scrutiny, as the climate benefits of offsetting activities are significantly more uncertain than the climate harm caused by GHG emissions, which means that the former cannot compensate for the latter. Moreover, offsetting is an accounting instrument only, and does not actually decarbonize the aviation sector. Airlines have recently begun to add disclaimers to their compensation claims. However, the study shows that these disclaimers frequently create a contradictory overall impression, and thereby add to the misleading potential of compensation claims.

2.

The claim that the use of alternative aviation fuels is sustainable is factually incorrect, and therefore misleading. In a climate context, the term “sustainable” must be assumed to refer to the absence of GHG emissions, or to net-zero GHG emissions. While alternative aviation fuels cause significantly less GHG emissions than fossil aviation fuel, they are not GHG emission-free. Consequently, it is factually incorrect to describe them as “sustainable” in a climate context, and therefore misleading. The description is also incorrect in a broader, non-climate context, as the large-scale production of alternative aviation fuels is liable to be unsustainable, especially due to its large resource requirements. Moreover, alternative aviation fuels are currently produced only in very small quantities, and it is difficult to sustainably scale up their production in the short and medium term.

3.
Claims that air travel is or could be “sustainable, “green” or “responsible”, in either absolute or relative terms, are factually incorrect or otherwise deceptive. Air travel cannot be described as “sustainable” or similar absolute terms because it causes significant GHG emissions, which is unsustainable. The use of relative terms suggesting an environmental benefit of air travel is deceptive, inter alia because it obscures the fact that the only effective strategy to decarbonize the aviation sector is to fly less. Airlines increasingly employ disclaimers that admit that flying is unsustainable. However, these disclaimers usually create a contradictory overall impression, and therefore increase the misleading potential of sustainability-related
marketing claims.

Based on these findings it can be concluded that climate-related marketing claims by the aviation sector
have a high and systematic potential of misleading consumers. It is therefore recommended that the
aviation sector abstains from making climate-related marketing claims completely.