Four months on from COP 26 it’s reassuring to see headlines such as this. Keeping up the momentum on the issue of climate change and a sustainable environment is, some would argue, half the battle, and yesterday’s announcement from the CMA is the latest example of driving some potential government action in this space. 

Climate change continues to be a huge concern for the CMA, which has made supporting the transition to low-carbon growth one of its strategic priorities.  Its focus on this area has included projects such as guidance on avoiding making misleading environmental claims on goods and services and a market study into electric vehicle charging in the UK. It says that consumer law helps consumers to make informed and confident decisions and can therefore help them to consume more sustainably where they choose to do so.

Consequently, it has now produced advice for the UK government on both consumer and competition law considerations.  This article considers the consumer law aspects. The CMA recommends that the Secretary of State considers the following changes to the consumer protection framework:

• Create statutory definitions of commonly used environmental terms, such as biodegradable, compostable and carbon neutral. This would enable consumers to more easily compare products and stop unscrupulous businesses deliberately misusing these terms.
• Confirm an express positive obligation to disclose environmental information. This would put beyond doubt the requirement to disclose such information in all circumstances. This would be particularly helpful for consumers to identify less environmentally-friendly products which might not otherwise disclose their impact.

It also recommends legislative changes to improve supply chain transparency to:

• make expressly clear that businesses are protected against misleading omissions of material environmental impact information by their suppliers; and
• require suppliers making environmental claims to disclose the evidence which substantiates the claim to their customers.

Alternatively, the UK government may wish to consider introducing a more detailed framework for disclosure and due diligence.

The CMA has also recommended changes to the list of banned practices under consumer law to deter use, and support enforcement, of misleading and unsubstantiated environmental claims:

• adding misleading and unsubstantiated green claims to the list of banned practices under Schedule 1 to the Consumer Protection from Unfair Trading Regulations 2008;
• creating freestanding legislation to prohibit misleading and unsubstantiated green claims and practices such as the sale of products using misleading environmental claims or which become prematurely obsolete.

The CMA recommends that the Secretary of State consider additional changes to the consumer protection remedies available for breaches of consumer protection law which harm the environment and hamper delivery of Net Zero and sustainability goals.

The CMA has also set out some changes which BEIS may wish to consider in future, such as expressly prohibiting planned premature obsolescence; and broadening of the ‘right to repair’ under the Ecodesign for Energy-Related Products and Energy Information Regulations 2021 to include other categories of product.  It has also suggested that the government may wish to explore the use of behavioural insights to nudge consumers towards sustainable consumption patterns; and incorporating issues of sustainable consumption into consumer education campaigns.

Of course, at this stage this is just advice, and the extent to which the UK Government implements any of these recommendations remains to be seen. However, as the CMA points out, the Government has to date supported the transition to Net Zero through policy, including the commitment to a legally binding target of Net Zero emissions by 2050, and so it would appear that the CMA is hopeful that they will follow suit with regard to this latest advice.