TotalEnergies has come off second best in a court in France over allegations of greenwashing, which some academics now believe opens the way for legal action in South Africa and other African courts.
The case in the Paris Judicial Court in October was brought by Greenpeace, Notre Affaire à Tous and Friends of the Earth France. They asked the court to declare TotalEnergies’ climate claims “misleading commercial practises”.
This case dug deeper than other similar cases across the globe, underscoring how advertising represents the new front in the war between activists and the oil majors over climate change.
A year ago, TotalEnergies took the first such hit in South Africa, when the Advertising Regulatory Board ruled that it was “misleading” for it to tout its commitment to “sustainable development” since its core business “is directly opposed” to that imperative.
In that case, the outcome was largely symbolic, as TotalEnergies had already ended the campaign that had caused all the fuss, with SANParks.
In France, however, the court found that TotalEnergies was guilty of “misleading commercial practices” when it said it planned to reach carbon neutrality by 2050 and be a “major actor in the energy transition”. It ordered the oil giant to publish the ruling on its website for six months and pay the civil society groups €24,000.
As the most significant global ruling on greenwashing – misleading claims made to burnish climate credentials – this ruling is likely to necessitate an overhaul in the way TotalEnergies, and its rivals like Shell, market themselves to the public.
TotalEnergies had made a series of similar claims, saying it is “accelerating its development in renewable energies” with one objective: to provide affordable, cleaner energy.
‘Misleading the consumer’
In its annual report, TotalEnergies says it “supports the objectives of the Paris Agreement, which calls for the reduction of greenhouse gas emissions”, aiming to cap the rise in temperatures to 2° above pre-industrial levels.
But Greenpeace’s argument was that the company could not realistically claim to be committed to these goals when it is still investing in new oil and gas projects.
In court TotalEnergies tried to thread the needle by claiming it will be reducing the percentage of oil and gas in its sales mix by 2030, rather than abandoning these projects altogether. “New oil projects are necessary to meet existing oil demand, maintain prices at an acceptable level and create the conditions for a transition simply giving people time to adapt their habits,” it says.
The petrochemical group forecasts 4% growth in its production of oil, gas and electricity between 2023 and 2030, suggesting a far more subjective path than its advertising might have implied.
The French court didn’t buy it.
It said TotalEnergies “deliberately made an environmental claim likely to mislead the consumer, leading them to believe that, by buying its products or services, they were participating in the emergence of a low-carbon economy, following the recommendations of the scientific community, based on the Paris Agreement”.
TotalEnergies said it would not appeal the decision, arguing that this was largely a technical interpretation of the wording in its marketing around its climate strategy.
It said it has actually invested more than €20bn in low-carbon energies worldwide, and produces 32GW of renewable energy per year – equal to the output of 15 nuclear reactors.
“Regardless of the opinions of all those who continue to accuse us of greenwashing, despite everything we have already achieved for the energy transition in France and the rest of the world, we are proud to … help to build the energy system of tomorrow,” it said.
Legal liability
David Le Page, the director of Fossil Free South Africa, which brought the local advertising complaint against TotalEnergies last year, says the French verdict underscores the decision in South Africa.
“This finding strongly confirms the case we were making to the advertising regulator here, which is that there is no substance to TotalEnergies’ claims that it is transitioning away from fossil fuels,” he says.
Le Page says his organisation is now considering whether to pursue a follow-up complaint, since “TotalEnergies is still making claims about sustainable development on their website”.
The French decision is a major victory for the lobby against greenwashing marketing, as it puts companies on terms to ensure their promises match what they do.
Academics say it also opens the way for potential legal action.
Wits University legal researchers Zunaida Moosa Wadiwala and Tracy-Lynn Field describe this as a landmark moment in climate litigation, requiring that companies’ climate pledges must be scientifically verifiable.
“The French judgment could pave the way for consumers to hold corporations accountable for climate advertising claims in national and regional African courts,” they write. “It shows that civil society can use consumer protection law to act against big polluters before regulators do.”
Advertisers are prohibited from misleading customers in a number of African countries, including South Africa, through its Consumer Protection Act, Nigeria through its Federal Competition and Consumer Protection Act, and in Kenya, through similar legislation.
Wadiwala and Field say the French decision extends the global precedent, as the court didn’t just look at TotalEnergies’ emissions to check whether these followed the rules; it checked whether its future pledges match the Paris Agreement goal.
It is a verdict that marks a significant transition in climate law, they say. “The law has moved from regulating what polluters emit to scrutinising what they represent.”
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