A coordinated complaint campaign targeting FIFA’s advertising materials for the 2022 World Cup has been launched in five European countries – Belgium, France, Switzerland, the Netherlands, and the United Kingdom.
Towards the end of 2022, Fossil Free Football, Fossil Free Advertising, Notre Affaire À Tous, Climate Alliance Switzerland, New Weather Institute and Carbon Market Watch submitted claims to relevant national advertising standards authorities in which they argued that the marketing campaign promoting the 2022 World Cup in Qatar as carbon neutral was widely unsubstantiated. The NGOs requested that the advertising materials be deemed an unfair commercial communication.
Defining carbon neutrality
FIFA repeatedly emphasised the sustainability aspects of the event in its external communications, calling it the “First Carbon Neutral World Cup”. It claimed that the financing of renewable energy projects in recent years would fully offset the event's emissions to achieve a fully “carbon neutral” tournament. Yet carbon neutrality is a concept that is difficult to implement and verify. It implies correctly estimating the amount of greenhouse gases emitted into the atmosphere that needs to be “compensated” and funding enough projects to avoid or remove an equivalent amount of emissions elsewhere.
The promotion of the “fully carbon-neutral” World Cup was featured on social networks, as well as in various sustainability-related documents and posts on FIFA’s website. Additionally, FIFA operated a “climate pledge” mechanism targeting ticket holders, requesting them to make efforts towards reducing their carbon footprint in their daily lives, and informing those taking the pledge that their emissions were offset by FIFA. The complainants were critical of this, saying that it gives ticket holders the impression that attending the World Cup does not have an impact on the environment.
The complainants also claim that there is a lack of clarity in FIFA’s statements regarding the environmental and climate performance of the 2022 World Cup. They say that FIFA presents short and punchy messages, using superlatives on several occasions, but in vague terms and without sufficient information to enable the consumer to understand the benefits being advertised.
It has also been suggested that the carbon offsetting schemes proposed by FIFA are not enough to compensate for the emissions generated during the event, and that the schemes are not in line with international standards.
Even though the FIFA World Cup Qatar 2022 Greenhouse Gas Accounting Report was prepared by South Pole, a consultancy specialising in carbon footprint calculations, the complainants dispute the methodology used. The NGOs pointed out that the long-term GHG emissions from six of the stadiums constructed for the occasion were not factored in, even though their full lifespan was estimated at 60 years. The lack of consideration of the bigger picture, according to the applicants, makes the carbon footprint presented misleading.
Despite the fact that the complaints were filed in five different countries, due to the convergence of the arguments raised, they are being handled jointly in Switzerland, where FIFA is based. The Swiss Commission for Fairness (Commission Suisse pour la Loyauté) is the competent body to investigate the case. According to press reports, FIFA should formally respond to the NGOs’ claims by 31 March 2023.
If the Commission for Fairness considers that the case has been sufficiently proven, it will issue a decision which, in the event of a non-conformity being identified, will contain recommendations in the form of rules and guidelines. The decision can be issued even if the communications being challenged are no longer being published.
Substantiating green claims
This case is based on regulations governing advertising because there is currently no legislation that specifically and exhaustively addresses the subject of environmental claims. However, this is about to change in the EU. It is expected that at the end of March 2023, an already delayed EU legislative proposal on green claims will see the light of day. Although the official version is not yet adopted, the European Commission draft initiative was leaked earlier this year during inter-service consultations.
Building on the proposed Directive on empowering consumers for the green transition, the initiative is slated to set detailed rules on the substantiation of voluntary environmental claims in business to consumer commercial practices, with the main goal being to have a more consistent and evidence-based framework.
It is envisaged that before making green claims, companies will have to first substantiate them using a standard methodology. Some products will not be eligible for environmental claims, due to their inherent properties. Member states will be required to set up a system to verify the substantiation and to impose “dissuasive” penalties.
After being implemented through relevant national legislation, the new requirements would, in principle, apply to all companies operating in the European Union.
Given the growing public awareness of climate and environmental impacts, cases such as the one involving FIFA will become more common. The recent report from The Centre for Climate Change Economics and Policy and Grantham Research Institute on Climate Change and the Environment, Global trends in climate change litigation 2022 snapshot notes that filing climate-related claims against companies has established itself as an activist strategy across multiple jurisdictions.
The proposed new green claims legislation may remove some of the targets for such claims (assuming that companies modify their behaviour in response), but on the other hand also provides even firmer ground for claims against companies who continue to make vague and unsubstantiated environmental claims.
Anita Lloyd is a director in the environmental, safety and health practice at Squire Patton Boggs. She specialises in environmental and sustainability matters and advises clients in all sectors but has particular expertise in the chemicals, plastics, automotive, paper and other manufacturing sectors. She regularly advises clients based in the UK, the EU and outside the EU, on environmental and product regulation and its application to their business, products, facilities and supply chains.
Jamie Barge is a trainee for the European Public Policy Practice at Squire Patton Boggs in Brussels. She has a keen understanding in international and European law and analyses and interprets developments in legal and EU Affairs, supporting the team in the completion of projects.
Nina Kusnierkiewicz is a Polish-qualified lawyer and a member of the European Public Policy Practice at Squire Patton Boggs in Brussels, where she primarily supports clients on EU sustainability policy and regulatory matters. She has extensive expertise on legal aspects of waste management (waste generation and storage, treatment of waste, landfilling, use of by-product, end-of-waste status), pollutant emissions from industrial installations and environmental fees.