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Kenya: Behind the green veil: Legal perspectives and best practices on environmental claims in advertising in East Africa

11 June 2024
– 4 Minute Read

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Overview

  • In today's eco-aware market, advertisers often use environmental claims to attract consumers. However, unfounded or misleading claims not only deceive consumers but also undermine genuine environmental sustainability efforts.

In today’s eco-aware market, advertisers often use environmental claims to attract consumers. However, unfounded or misleading claims not only deceive consumers but also undermine genuine environmental sustainability efforts. The evolving legal landscape emphasises the need for corporate entities to navigate environmental claims carefully to reduce legal risks. Courts no longer view advertisements as mere puffery but demand truthfulness, especially when claims significantly impact consumer decisions.

What is Greenwashing?

Greenwashing is a deceptive marketing strategy that misleads consumers about the environmental benefits of products or services by making unsubstantiated or false sustainability claims. This often involves deceptive labels or hiding harmful practices behind vague terms like “eco-friendly” or “sustainable.” Greenwashing sometimes pairs with ‘green wishing,’ where companies set ambitious environmental goals without transparently disclosing their current performance.

Comparative analysis: East African Community

In Kenya, the Consumer Protection Act of 2012 and the Environmental Management and Coordination Act of 1999 form the legal framework for consumer rights and environmental management. However, despite efforts to regulate environmental claims in advertising, these laws fall short of addressing widespread greenwashing. Despite existing self-regulatory codes like the Advertising Standards Body of Kenya’s Code of Advertising Practice and Direct Marketing from 2003, misleading “green” advertisements persist, worsened by enforcement challenges and limited public awareness.

The regulatory landscape for advertising varies across East Africa. The advertising regulatory framework in Uganda is dispersed across various statutes without centralised legislation. The recently assented Competition Act 2023 could enhance oversight. In Tanzania, the Fair Competition Act, 2003, and its regulations address misleading and deceptive practices in advertising, offering a basis for challenging false environmental claims. Rwanda’s Law on Consumer Protection, 2012, and Regulations establish a strong stance against misleading advertising practices but do not explicitly extend to environmental claims.

European Union: A model for East Africa?

The European Union (EU) sets a high standard in regulating environmental advertising claims, through directives such as the Unfair Commercial Practices Directive (2005/29/EC) and the more recent Green Claims Directive. These directives underscore the importance of clear and substantiated claims, effectively preventing consumer deception through greenwashing tactics. They include all sustainability assertions in a business-to-consumer setting and prohibit the use of terms like “environmentally friendly” without solid evidence. Only sustainability labels endorsed by official certification programs or public entities are allowed. This approach, backed by a wealth of jurisprudence, offers a model for East Africa, highlighting the importance of detailed regulations and certified sustainability labels.

Insights for East Africa

East African nations could better protect consumers from misleading ‘green’ claims through the implementation of sustainability labels by authoritative bodies responsible for upholding the quality and safety of products and services. Furthermore, developing a jurisprudential body through active enforcement and adjudication of cases related to environmental claims in advertising would strengthen the legal framework and offer clearer guidance to advertisers.

Recommendations and conclusion

In conclusion, countries can bolster their regulatory frameworks through several measures. Firstly, by adopting clear, detailed guidelines on substantiating environmental claims, ensuring advertisers provide solid evidence. Secondly, by promoting transparency regarding the life cycle impact of products and services, aligning with the EU’s emphasis on accurate environmental assessments. Lastly, by strengthening enforcement mechanisms to hold violators accountable, fostering a culture of compliance and environmental stewardship.

As environmental awareness expands in East Africa, so does the need for truthful environmental advertising. While foundational laws are in place, the region could greatly benefit from more specific regulations and the active development of legal precedents, taking inspiration from the EU’s strategies. Such progress would not only safeguard consumers but also promote genuine environmental accountability in businesses, contributing to the achievement of sustainable development goals.

We remain available to provide further guidance on regulatory updates, compliance and other assistance. For more information, please contact David Opijah and Taria Khaoma, or your relationship partner at Bowmans.