Introduction
In recent years, the concept of sustainability has gained prominence in business discourse, especially in light of advances in environmental agendas and support for sustainable development.
Terms like "eco-friendly," "carbon neutral," and "biodegradable" have become commonplace in packaging, marketing campaigns, and corporate reports.
However, this trend has also brought to light an increasingly worrying practice: greenwashing.
This is a strategy by which companies convey a false image of environmental responsibility without necessarily adopting concrete sustainable practices.
In Brazil, the fight against greenwashing still faces several legal challenges, especially given the regulatory gap and the need to strengthen monitoring and accountability mechanisms.
I – What is Greenwashing?
The term greenwashing was coined in the 1980s by environmentalist Jay Westerveld and has since been used to describe deceptive actions by companies that try to promote themselves as environmentally responsible without proper backing from their actual practices.
In other words, greenwashing occurs when there is intentional distortion or exaggeration about the sustainability of products, services, or corporate policies.
This practice can occur in various ways: from the use of symbols or colors that refer to nature, to the dissemination of messages that suggest non-existent environmental concerns.
For example, a company that advertises its products as "green" or "natural" but does not have certifications or technical evidence to justify such claims is engaging in greenwashing.
In addition to being a dishonest practice, greenwashing undermines the credibility of environmental agendas, deceives consumers, and makes it difficult to differentiate between companies that are truly committed to sustainability and those that only appear to be so.
II – The Brazilian legal framework and current limitations
In Brazil, there is still no specific legislation that deals exclusively with greenwashing, which makes it difficult to accurately characterize the practice and effectively hold companies accountable. However, it is possible to apply a series of legal norms and principles to combat deceptive conduct.
For consumer relations, the CDC (Law No. 8.078/1990) is the main instrument used to curb greenwashing practices, especially based on the following provisions: (i) Article 6, IV: right to clear and adequate information; (ii) Article 37: prohibition of misleading or abusive advertising; and (iii) Article 39: prohibition of unfair commercial practices.
From the perspective of the Consumer Protection Code (CDC), unfounded environmental claims can be classified as misleading advertising, subjecting the company to civil, administrative, and even criminal liability.
From a civil law perspective, civil liability for material and moral damages arising from misleading or environmentally harmful advertising can also be based on articles 186 and 927 of the Civil Code.
The Environmental Crimes Law (Law No. 9.605/1998), although it does not expressly mention greenwashing, provides for sanctions for conduct that causes damage to the environment or hinders its protection, including in the field of environmental information.
In the field of competition law, Law No. 12.529/2011 establishes that companies that use greenwashing to obtain unfair competitive advantages may be investigated by the Administrative Council for Economic Defense (CADE), especially if such practice represents unfair competition.
With the advent of ESG agendas and the advancement of sustainability issues, the Regulatory Framework for Sustainable Advertising has also become a landmark in Brazilian legislation on the subject.
Currently, there is no consolidated regulatory framework in Brazil regarding environmentally responsible advertising. However, initiatives such as the CONAR (National Council for Advertising Self-Regulation) Green Advertising Guide and the ISO 14021 guidelines (international standard on environmental labeling) help guide company conduct and serve as a reference for administrative and judicial judgments.
III – Legal and Institutional Challenges
The lack of specific legislation on greenwashing in Brazil creates legal uncertainty for both consumers and companies that operate ethically. Furthermore, other challenges persist.
The multitude of environmental labels—many of which are created by the companies themselves—makes it difficult to verify the veracity of the claims. Regulation that standardizes criteria and establishes independent certification bodies is essential to prevent abuses.
Furthermore, environmental and consumer protection agencies still lack sufficient technical infrastructure and human resources to monitor and audit environmental information disclosed by companies.
Although it is a topic of great value to everyone, another challenge is the low level of litigation in favor of sustainability. The number of lawsuits related to greenwashing is still low, which reveals a lack of knowledge about the subject on the part of consumers, lawyers, and members of the judiciary.
Finally, a highly relevant challenge is the conflict between sustainability and economic interests. Currently, companies that genuinely seek to adopt sustainable practices face a competitive disadvantage compared to those that merely feign environmental commitments. This reinforces the urgency of effective penalties to discourage greenwashing.
IV – Paths to strengthening the fight against greenwashing
Initially, one of the paths that needs to be taken requires the National Congress to enact a law on environmental labeling and communication, with clear definitions of greenwashing, requirements for proof, and penalties proportionate to the severity of the infraction.
Companies committed to Environmental, Social and Governance (ESG) principles must adopt strict criteria for communicating their sustainability commitments, or risk suffering reputational, legal and financial consequences.
Furthermore, social empowerment is necessary. Educational campaigns aimed at consumers and businesses can broaden critical awareness, enabling the public to identify deceptive practices and push for transparency.
Through the practical application of such practices, encouraging the creation of reputable certification bodies accredited by official agencies can increase the reliability of products and services considered sustainable.
Finally, greater involvement of the Public Prosecutor's Office and the Public Defender's Office in monitoring and enforcement is necessary. These institutions possess legal instruments—such as public civil actions and conduct adjustment agreements (TACs)—that can be used to hold companies accountable for engaging in greenwashing on a collective scale.
Conclusion
Greenwashing represents a serious obstacle to the consolidation of a sustainability culture in Brazil. By disseminating false or misleading information about environmental impacts, companies not only undermine consumer trust but also compromise the development of truly responsible business practices.
In the legal arena, the absence of specific legislation poses significant challenges to the repression of greenwashing. Even so, it is possible to utilize existing norms—such as the Consumer Protection Code, the Civil Code, and the Environmental Crimes Law—to curb such practices, especially when integrated with actions of inspection, self-regulation, and environmental education.
Overcoming these challenges depends on a joint effort between public authorities, businesses, and civil society, with a view to building a clear and effective regulatory environment that rewards a genuine commitment to sustainability.
BIBLIOGRAPHIC REFERENCES
COSTA, Camila da et al. Differentiating Green Marketing from Greenwashing Based on Data from Banco do Brasil SA and Natura & Co. Communication and Society, no. 45, pp. 1-20, 2024.
DE FREITAS NETTO, Sebastião Vieira et al. Concepts and forms of greenwashing: A systematic review. Environmental Sciences Europe, vol. 32, no. 1, p. 19, 2020.
LOVATO, Marcos Luiz. Greenwashing in Brazil: when environmental sustainability is reduced to a label. Electronic Journal of the Law Course of UFSM, v. 8, p. 162-171, 2013.
MEDEIROS, Priscila et al. Greenwashing and disinformation: The toxic advertising of Brazilian agribusiness on social media. Communication and Society, no. 45, pp. 1-26, 2024.
