Hållbarhetsredovisning som marknadsföringsverktyg – En undersökning av de marknadsföringsrättsliga konsekvenserna av företagens hållbarhetsredovisning

Sammanfattning: Environmental and climate issues are becoming increasingly relevant in society. Both consumers and companies, as well as international organizations are placing greater focus on these issues. For example, companies often use environmental claims in their marketing, making statements that create the impression that a product has a positive impact, no impact or a lesser impact on the environment compared to other products. Additionally, it is increasingly common for companies to report on the social, economic, and environmental aspects of their operations, either on a voluntary or mandatory basis. Therefore, companies engage in sustainability reporting. Various regulations come into play when it comes to communicating environmental and climate-related information. Two of these are the Marketing Act, which prohibits unfair marketing, and the Annual Reports Act, which requires a certain designated group of companies to disclose information about their sustainability efforts. This thesis aims to examine the interaction between these two sets of regulations and, more specifically, address the question of whether the rules on sustainability reporting can have marketing law consequences. The Marketing Act does not contain specific rules regarding the marketing of environmental claims. Instead, environmental claims are evaluated against the general rules on unfair marketing in the Marketing Act. In addition to the Marketing Act, the ICC Advertising and Marketing Communications Code (the ICC Code) is of importance regarding environmental claims in marketing. For both the Marketing Act and the ICC Code to be applicable, a marketing measure must be produced with a commercial, or promotional, purpose. Both the Marketing Act and the ICC Code place high demands on marketing measures to be truthful, clear, and provide an accurate representation. Marketing, therefore, must be reliable. A certain group of larger companies is obligated to report on their sustainability efforts in a sustainability report. The requirements for sustainability reporting according to the Swedish Annual Reports Act are that the information should be material, meaning it is fair, balanced, and relevant. In 2019, the EU presented the Green Deal, which is the EU's roadmap and strategy for transitioning to a circular economy. As part of the Green Deal, the EU has adopted a new directive, CSRD, which regulates in more detail how companies should conduct their sustainability reporting. The directive has not yet been incorporated into Swedish law. CSRD also prescribes that the disclosed sustainability information must be material, but also imposes a requirement for the information to be audited by an independent third party. In connection with CSRD, the EU will shortly adopt common reporting standards that all reporting companies are obliged to follow. A first step in the analysis of this thesis is to examine whether there is an overlap in the scope of both regulations. The Annual Reports Act and CSRD are applicable to a certain designated group of larger companies. For the Marketing Act and the ICC Code, it instead concerns whether a presentation has been made for commercial purposes. Decisive factors for assessing the commercial purpose include whether the presentation has a specific sales message, and whether it affects the demand for the company's products. When a marketing claim relates to a company's sustainability efforts in general, and lacks a clear connection to a specific product, it is somewhat less clear whether the claim was made for commercial purposes. However, the Market Courts have repeatedly emphasized that environmental claims have a significant commercial value in themselves, due to consumers’ increasing environmental awareness. This suggests that even more general descriptions of a company's sustainability efforts should be considered to have been made for commercial purposes. If claims in a sustainability report are considered to have a commercial purpose, the sustainability reporting can have the marketing law consequence of the content being subject to review under the Marketing Act. The requirements for the information that may and must be communicated differ between the sustainability reporting rules and the marketing regulations. Both the Marketing Act and the ICC Code place a high burden of truthfulness and reliability on environmental claims in marketing. According to the Annual Reports Act, however, the disclosed sustainability information should instead be material. The quality and truthfulness of the disclosed information currently depend on the company's willingness to be transparent. The requirements in the Annual Reports Act cannot be said to be aligned with the high standards of truthfulness applied in marketing law. With the introduction of CSRD, sustainability reporting will follow specifically designated standards and, in addition, be audited by an independent third party. This reduces the risk of environmental claims in sustainability reporting being deemed unreliable under the Marketing Act.