Netherlands Update: KLM at Fault with Misleading Sustainability Claim

Sustainability is playing an increasingly important role in consumer behaviour. Companies, including the major polluters in aviation, know this all too well. By making reassuring claims, an attempt is made to take away the shame of flying. In 2022, we wrote about KLM’s sustainability claims, which were judged to be misleading by the Advertising Code Committee in 2021. In the same blog, we looked ahead to the judgment that the court would make on the same claims, and we predicted that it was likely that the court would also qualify these rulings as misleading. The clear verdict published last week confirmed this prediction.

With its environmental claims, KLM is acting in violation of the Unfair Commercial Practices Act

In the collective action brought by the Fossielvrij NL foundation against KLM, the court ruled last week that KLM misleads consumers by making environmental claims, which are based on vague and general statements about environmental benefits, and that with some statements it paints an overly rosy picture of the consequences of measures. As a result, the claims are misleading and unlawful, and KLM is acting in violation of the Unfair Commercial Practices Act.

Statements on the KLM CO2ZERO programme

Before the District Court of Amsterdam reaches its final judgment, each expression will be discussed separately. In this blog, we will limit ourselves to the advertisements that were part of KLM’s “CO2ZERO programme”, and which we also examined in 2022. These are the following claims:

CO2ZERO Reduce your impact

CO2ZERO

At KLM, we are investing in a series of initiatives to reduce our footprint. You too can do your part to make aviation a more sustainable sector. Let’s change the future together!

With our reforestation program, you compensate for (part of) the impact of your flight on the environment. It does not affect the direct emissions of the flight itself, but your contribution does help restore forests that absorb CO2.

How can you help […] And, you can do more: get involved by contributing to one (or both!) of our sustainable programs so we can create a better future together. Reforestation is a contribution from nature that reduces CO2 emissions outside the aviation industry, but SAF has a direct impact on making flights more sustainable.

Restore forests to absorb [x] kg of your CO2 emissions

Contribute to sustainable aviation fuel and reduce your CO2 emissions by[ x] kg

Your CO2 absorbed by reforestation 0 kg CO2

Your CO2 reduced by SAF 0 kg CO2

“Our CO2ZERO program includes not only SAF, but also our reforestation project. You are in control: choose whether you want to fully contribute to SAF or whether you prefer a mix of both initiatives.”

The claims relate to the measures taken by KLM and offered to its customers, which would limit the negative environmental impact of flying.

Judgment of the court

First of all, the court ruled that the expressions “CO2ZERO” and “Reduce your impact” are absolute and far-reaching, while that cannot be justified. Furthermore, the statements suggest more than KLM can deliver. KLM urges consumers to “change the future together” and “create a better future together”. In the opinion of the court, KLM thus gives the impression that the reforestation programme offered by KLM and the contribution to the use of more sustainable aviation fuel (‘SAF’) in flying are taking important steps to make a positive contribution to “more sustainable” aviation. According to the court, KLM’s statements paint an overly rosy picture of the (limited) environmental benefits that can be achieved by contributing to reforestation or SAF.

In addition, KLM suggests that there is a direct link between the consumer’s contribution and the impact of his or her flight on the environment, while there is none.

Suggestive sustainability claims

This opinion once again endorses that sustainability claims must be 1) objective, 2) substantiated and 3) correct. Only then can the claim not be considered misleading. For the time being, the provision of measures that ‘compensate’ or ‘reduce’ the negative impact of a product or service on the environment is permitted. Even if these measures have only minor environmental benefits. However, it is not permissible to paint an overly rosy picture of the contribution of these measures.

The question is whether these kinds of measures do not always lead consumers astray, because they give the impression that they can do something ‘good’ for the environment, while this is a service that is by definition polluting. So you could argue that the terms ‘offsetting’ or ‘reducing’ CO2 always give consumers the wrong impression in principle. Especially since consumers often find it difficult to understand information about CO2 compensation.

According to ACM, it is precisely for this reason that it is important not to use absolute claims, such as ‘climate neutral’ or ‘net zero‘ when making CO2 compensation claims. These, even if the claim is explained, can quickly be misleading. Furthermore, when making such claims, it is important that it is clear that the measure does not reduce the CO2 emissions of that service or product, but that the emissions are compensated by means of projects.

In any case, KLM no longer paints too rosy a picture and makes its customers aware of the harsh reality by placing the text “Flying is not sustainable” on its sustainability page.

By Hocker, Netherlands, a Transatlantic Law International Affiliated Firm. 

For further information or for any assistance please contact netherlands@transatlanticlaw.com

Disclaimer: Transatlantic Law International Limited is a UK registered limited liability company providing international business and legal solutions through its own resources and the expertise of over 105 affiliated independent law firms in over 95 countries worldwide. This article is for background information only and provided in the context of the applicable law when published and does not constitute legal advice and cannot be relied on as such for any matter. Legal advice may be provided subject to the retention of Transatlantic Law International Limited’s services and its governing terms and conditions of service. Transatlantic Law International Limited, based at 84 Brook Street, London W1K 5EH, United Kingdom, is registered with Companies House, Reg Nr. 361484, with its registered address at 83 Cambridge Street, London SW1V 4PS, United Kingdom.