In 2023 a number of airlines faced litigation and regulation against alleged “greenwashing” – making claims about sustainability that are, well, not sustainable. The backlash is directly relevant to travel managers and is likely to continue in 2024.

“A large part of greenwashing by airlines is directed at their business clients, with their focus on sustainable aviation fuel and offsetting,” says Hiske Arts, campaigner with Netherlands-based pressure group, Fossielvrij (which translates as fossil-free), whose court case against KLM under the European Union’s Unfair Commercial Practices Directive is expected to reach judgment next month.

Other recent and impending rulings, and two new EU directives, could affect companies’ ability to cite offset and SAF purchases as progress towards business travel carbon footprint reduction. And there is even potential for regulators or pressure groups to act against companies which misrepresent their business travel emission reduction strategies.

For now, however, the focus is on airlines. In addition to the Fossielvrij case, European consumer watchdog representative organisation BEUC filed a complaint with the European Commission in June 2023, alleging 17 different airlines had used terms such as “sustainable”, “responsible” and “green” deceptively.

In November 2023, another pressure group, Possible, lodged complaints with the Organization for Economic Cooperation and Development against British Airways and Virgin Atlantic. The group alleges the carriers’ carbon outputs do not align with their stated net zero ambitions. Both have responded by setting out the steps they are taking to mitigate the environmental impact of flying.

Then, in December 2023, the United Kingdom’s Advertising Standards Authority (ASA) ruled that adverts from Lufthansa, Air France-KLM and Etihad Airways all made misleading claims about their environmental impact. One ad from the latter, for example, had stated: “Total peace of mind with Etihad Airways. Environmental advocacy.”

According to law firm Bird & Bird, the ASA is using artificial intelligence to scrutinise more marketing claims and therefore a higher number of adverse rulings can be expected in 2024.

Perhaps the most significant statement in the ASA ruling was that there are “currently no initiatives or viable technologies in operation within the aviation industry that would adequately substantiate absolute green claims.” Bird & Bird commented: “The trend is clear: airlines will need to ensure their green claims are substantiated and transparent or face potential regulatory consequences.”

That trend is likely only to intensify with the Empowering Consumers Directive that was adopted last week by the European Parliament and is now awaiting endorsement by the European Council of member states. Also going through the EU lawmaking process, but not before the elections in June which could return a more climate change-sceptic European Parliament, is the Green Claims Directive. Both aim to penalise unsubstantiated environmental claims. The former, says Bird & Bird partner Constantin Eikel, includes “making it prohibited to claim in the business-to-consumer context that a product is carbon-neutral based on offsetting.”

Another lawyer, barrister Peter Lockley at London-based chambers 11KBW, agrees. “Any net zero claim based only on offsets will very quickly be called out now as a junk claim,” he says. “People are seeing past the easiest routes to a notionally net zero plan. One aspect of that increasing sophistication might be digging into the claims that underlie business travel emissions.”

The SAF misnomer?

Could sustainable aviation fuel go the same way as offsetting? “SAF is the biggest greenwash of all,” says Fossielvrij's Arts. “It’s such an amazing brand name. It’s not sustainable,” adding that this is why she refuses to use the term. Arts refers instead to “biofuels” which, in her view “have many limitations”, including severely limited production potential, and other harmful non-CO2 toxins.

Eikel expects the term “SAF” to be litigated in the next couple of years to test whether it is tantamount to greenwashing. As for the outcome, “My best guess is that the term won’t go away completely but standalone use will cease,” he says. “Without context, it will be a difficult term to use.”

Lockley, an environmental campaigner before he moved into law, is a SAF-sceptic, but thinks reputational rather than legal risk will force change. “SAF is another case of the industry promising jam tomorrow as a basis for it to carry on expanding today,” he says. “But you can’t really ban airlines from using the term SAF. It’s more about building up public awareness that this is a misleading term to the point that it embarrasses them out of using it.”

John Harvey, managing partner of travel consultancy Globalyse, is an avowed advocate of SAF, but even he says “I don’t like the term ‘SAF’. I would prefer ‘defossilised aviation fuel’, which is a far more accurate description.” He supports SAF in preference to fossil fuels because the key difference is the “source of the carbon. Either it is unlocked from somewhere it has been for millions of years or you’re using carbon in the short-term cycle of biomass material.”

Harvey argues that, given the reality that companies are continuing to fly for business, it is far better they fly in aircraft which do use SAF. Moreover, he says, the Science Based Targets initiative (SBTi), which defines and promotes best practice in emissions reductions, “recognise SAF as a reduction versus fossil fuel use.”

As a result, Harvey considers disparagement of SAF as counter-productive “greenhushing”, while agreeing that the very name makes SAF its own worst enemy. “I would rename it now if I could,” he says. “Corporate clients considering investing in SAF will stop taking that action if they think they are connecting their brand to something the general public will take against. All that does is cause more inaction.”

Buyers beware

While these arguments swirl back and forth, lawyers and travel experts warn that airlines’ corporate clients need to ensure they avoid mis-stating their achievements in reducing their own carbon footprints. “Depending on the jurisdiction, the financial risks through fines can be very high – up to ten per cent of turnover,” says Eikel. “The company is liable even if it was the aviation or supplier that wrongly said it was using 20 per cent less carbon.

“Once the ECD comes, I imagine there will be a big focus on sustainability reports. There will be rules on how you can promote goals and ambitions, which are in every sustainability report. If a company says ‘By 2030 we will reduce our travel carbon footprint by x per cent,’ you will have to put next to it concrete steps that need to be measured by an independent third party, and to publish the progress towards the goal. Too many lawyers have been advising clients to put ‘We aim to…’ before stating their goals, but now you are going to have to be more concrete about that.

“Travel managers should carefully review green claims about their means of transportation. If they book flights for employees or agree a framework agreement with a specific airline that makes a claim, they should only repeat the part they believe to be true,” says Eikel.

Festive Road associate consultant Ami Taylor also urges travel managers to review their public declarations about emission reductions, especially at companies where business travel accounts for a high proportion of their carbon footprint. “It’s where there’s lack of transparency that there could be challenges,” she says. “If you are claiming a 30 per cent reduction in your travel emissions, what’s included in that, over what time period, and how have you achieved it?”

She continues: “For travel managers this is about understanding your contribution to the claims the business is making and ensuring transparency and reliability. Buyers also need to think about the potential risk in their supply chain. Of the targets and the claims that suppliers are making, how much are they relying on those claims to meet their own net zero targets? If the supplier does fall short, how can that be compensated?”

Taylor also urges travel managers to build a requirement for disclosure of concluded or pending greenwashing litigation into supplier contracts, to watch out for developing legislation, and retain data for potential claim auditing.

Finally, she warns that greenwashing is a complex topic for travel managers to handle alone, urging they seek advice from experts. “They might well exist within the buyer’s organisation: the compliance team or sustainability,” she says. “If they don’t exist, collaborate with other buyers and independent specialists.”