Author: Àlex Peralta Martínez, LLM
December 17, 2024
Introduction: the International Perspective
On June 5, 2024, World Environment Day, United Nations (UN) Secretary-General António Guterres called on every member state to ban advertisements from fossil fuel companies; he pronounced this declaration at New York's American Museum of Natural History. His message supported conclusions reached in the 28th meeting of the Conference of the Parties (COP28), urging a phase-out of fossil fuels in alignment with scientific research. The Intergovernmental Panel on Climate Change (IPCC) reports reveal that businesses and corporate organizations from the fossil fuel sector have used advertising and deceptive marketing to sway consumers and induce doubt, undermining efforts to climate change mitigation and transition towards cleaner renewable energy.
In the European Union (EU), there are already regulations on greenwashing. This practice involves companies acting in ways that create the false impression they are doing more to protect the environment than they actually are. Some examples are H&M’s misleading environmental scorecards in the labels of its products and Keurig’s false advertisement of their K-cup coffee pods as recyclable. Nevertheless, in the EU ads promoting fossil-fuel-heavy products, like flights, remain legal. A European Citizens' Initiative (ECI) petition in 2021-2022 aimed to secure a ban on such ads, but it only gathered 280,000 signatures out of the 1 million, from seven or more different EU countries, required to propose a new law on a ban of fossil fuel ads.
Two years ago France became the first European country to enact a nationwide ban on fossil fuel ads. Specifically, the law prohibits advertising for all energy products directly related to fossil fuels. However, this law has its limitations. The EU still defines natural gas as green energy; therefore, natural gas advertisements are still permitted, which exempts gas-powered cars and planes from the national ban. Finally, fossil fuel companies still can visualize themselves through sponsorship of events, institutional communication and financial advertising. Thus, to what extent is this national prohibition impactful?
In the absence of harmonized EU legislation on fossil fuel advertising, individual cities across Europe are leading the way with local laws. In a significant move, the Hague in the Netherlands became the first city in the world to ban advertising for fossil fuel products and services in public spaces from January 2025 onward.
The Hague’s Ordinance: What Does it Cover?
The Hague’s city council amended its advertising policies to include a ban on ads for fossil fuels, air travel, gas and electricity from non-renewable sources, cruises, and vehicles running on fossil or hybrid fuel. These ads are prohibited in spaces accessible to the public, including transit stops, billboards, and freestanding screens. However, the ban does not cover online advertising or political ads created or funded by fossil fuel companies. The proposal was introduced by the city's animal welfare-focused Party for the Animals. The council has also called for a nationwide ban that would extend to social media and other outdoor spaces.
National vs. Local Law: The Reach and Limits of a Ban
Is it more effective for it to be regulated by local laws? Other Dutch cities, like Amsterdam, Tilburg, and Eindhoven, have followed The Hague’s example by initiating similar ad bans. Tilburg, notably, plans to expand its ban to cover advertisements for meat and fish products due to their environmental impact. Beyond the Netherlands, cities both in Europe and globally are contemplating or enacting similar measures. This is the case of Canada, and Ireland. Moreover, Cape Town launched an ad ban campaign, Edinburgh has excluded fossil fuel advertising and sponsorships, and Zurich and Bern have taken a broader approach, banning all outdoor commercial advertising. Stockholm’s ban will be implemented in 2026.
Critics argue that French national lawmakers, compared to the Hague’s and Tilburg’s cases, lacked the ambition to direct the consumption of the population towards more responsible fossil-free alternatives such as using wind or solar energy. This new perspective of the law would increase social awareness of a nation’s carbon footprint from the use of certain products that will no longer be advertised in public spaces.
However, both French and the Hague’s legislations don’t cover advertisements in social media, for instance, and do not cover other products that contribute to air pollution (e.g. certain meat and fish products). More generally speaking, comparing the ban of the advertisement of these kinds of products and services against prohibiting the underlying goods or services themselves, this measure can be perceived as rather minimal. Nevertheless, socio-legal research has repeatedly demonstrated that alternatives such as mandatory warnings or labelling requirements are “less effective and probably ineffective” compared to a ban on fossil advertising. Moreover, these restrictions can act as a social tipping intervention.
To sum up, some critics argue that while national-level bans are a step in the right direction, they lack the scope of local bans like those in the Hague, which target a broader range of high-carbon products. However, both local and national laws often lack regulations for digital and social media advertising, a significant gap given the influence of online marketing.
Balancing Freedoms: the Legality Of the Ban Under EU Law
Within the EU’s legal framework, this issue intersects with several legal protections, including protections of the freedom of movement of goods, the freedom to provide services, the freedom of expression, and the freedom to conduct business. The EU’s internal market law allows member states to make regulations restricting these freedoms if they serve the public interest, which includes environmental and health protections.
The right to commercial speech is protected under European law, and it includes advertising. For a restriction like a fossil fuel ad ban to be lawful, it must be both clear, and proportional. Distinctly identifying the ads covered and being precise on the scope of the banning law. It also has to be based on reliable scientific evidence. This is where research, such as IPCC reports that link fossil fuel use to climate harm, can provide solid justification. Ultimately, national governments and EU institutions must balance the commercial interests of businesses with the public desire to achieve climate goals, which has to be evaluated in a fair balance between the affected interests. Moreover, the government must show there has been an exploration of other alternatives for a trade restriction.
Final reflection: A lesson from tobacco?
The UN, alongside the international scientific community, recognizes that fossil fuel advertising plays a significant role in shaping public perceptions and normalizing carbon-intensive lifestyles. There are several debates regarding this topic, namely the content of the restrictions, the government body (local or national law), and the adequacies of these laws with regional institutions, amongst others. In many ways, the current debate mirrors past discussions around tobacco advertising—ultimately, public health prevailed over corporate interests. Moreover, these regulations contribute to reaching the Paris Agreement as well as EU’s climate goals.
While restricting fossil fuel advertising limits commercial speech, this limitation is justified by its alignment with the EU’s commitments to health, environmental, and consumer protections. If society is to achieve climate neutrality, banning fossil fuel ads can be a critical step in reducing greenhouse gas emissions and shifting social norms towards a more sustainable future.
Glossary
Carbon emissions: carbon dioxide that planes, cars, factories, etc. produce, thought to be harmful to the environment
Carbon footprint: the amount of carbon dioxide that an activity produces
COP28: 28th meeting of the Conference of the Parties of the United Nations Framework Convention Climate Change
European Citizens' Initiative: Mechanism that enables citizens of the EU to propose a legal act on a specific desired topic after fulfilling certain requirements.
Fossil fuel: a fuel such as gas, coal, and oil that were formed underground from plants and animal remains millions of years ago
Green energy: energy that can be produced in a way that protects the natural environment
Intergovernmental Panel on Climate Change (IPCC): United Nations body for assessing the science related to climate change
Social tipping intervention: an intervention that triggers the rapid transition to a state of net zero emissions