Since 27 September 2026, Article 23 of the Consumer Code (Legislative Decree No 206 of 6 September 2005) has included among the commercial practices considered misleading in all circumstances “making a generic environmental claim for which the trader is not able to demonstrate recognised excellent environmental performance relevant to the claim” (Normattiva). The rule arrives at a time when product sheets, sustainability pages and promotional copy are increasingly written with generative artificial intelligence tools. The provision draws no distinction according to who, or what, actually drafted the text: it looks to the commercial communication and to the trader who disseminates it. This is the right starting point for understanding what changes for communications, marketing and legal functions.
Directive (EU) 2024/825 and its Italian transposition
Directive (EU) 2024/825 of 28 February 2024 amended Directives 2005/29/EC and 2011/83/EU to empower consumers for the green transition. Member States were required to adopt the transposition measures by 27 March 2026 and to apply them from 27 September 2026 (EUR-Lex). Italy implemented it by Legislative Decree No 30 of 20 February 2026, published in the Official Gazette (Gazzetta Ufficiale) No 56 of 9 March 2026 and in force since 24 March 2026 (Gazzetta Ufficiale). The Decree amends, among others, Articles 18, 21 and 23 of the Consumer Code, and provides in Article 2 that its provisions apply from 27 September 2026 (Normattiva).
A terminological difference deserves attention. Where the Italian version of the Directive speaks of “marchio di sostenibilità”, the Italian text uses the expression “etichetta di sostenibilità” (both corresponding to the English “sustainability label”); the definition remains the same.
The definitions: environmental claim, generic claim, recognised excellence
Article 18 of the Code defines an environmental claim as any non-mandatory message or representation, in a commercial communication, that states or implies a positive or zero impact on the environment, less damage than other products or an improvement over time; the form is irrelevant, since it includes “texts and pictorial, graphic or symbolic representations, such as marks, brand names, company names or product names”. A claim is generic where it is not included on a sustainability label and “whose specification is not provided in clear and prominent terms on the same medium”. Finally, recognised excellent environmental performance is performance compliant with Regulation (EC) No 66/2010 on the EU Ecolabel, with a type I ecolabelling scheme compliant with standard EN ISO 14024 and officially recognised in the Member States, or with top environmental performance under other provisions of Union law (Normattiva).
Recital 9 of the Directive gives examples of generic claims: among others, “environmentally friendly”, “eco-friendly”, “green”, “ecological”, “energy efficient”, “biodegradable”, as well as similar statements that create the impression of excellent environmental performance. The same recital clarifies the dividing line with an example taken from packaging: “climate-friendly packaging” is a generic claim, whereas stating that 100 per cent of the energy used to produce it comes from renewable sources is a specific claim, which falls outside this ban but not outside the other rules on misleading practices (EUR-Lex). The ban does not target the adjective as such, but the adjective lacking specification or recognised excellence.
The new practices misleading in all circumstances
The cases that the Decree has added to the list in Article 23(1) include the following: displaying a sustainability label that is not based on a certification scheme or not established by public authorities (letter b-bis); making a generic environmental claim without recognised excellence (letter d-bis); making a claim about the product or the business as a whole when it concerns only a certain aspect or a specific element (letter d-ter); “claiming, based on the offsetting of greenhouse gas emissions, that a product has a neutral, reduced or positive impact on the environment in terms of greenhouse gas emissions” (letter d-quater); presenting requirements imposed by law on all products in a category as a distinctive feature of the offer (letter l-bis) (Normattiva).
Inclusion in the list has a precise effect. Directive 2005/29/EC explains that the practices in Annex I are the only ones that can be deemed unfair “without a case-by-case assessment” (EUR-Lex). For these cases there is no need to assess the effect on the consumer’s decision: it is sufficient that the conduct matches the one described.
The role of the AGCM and the burden of proof
Competence to intervene lies with the Italian Competition Authority (AGCM), under Article 27 of the Code. Two provisions are particularly relevant. Paragraph 5 allows the Authority to require the trader to provide evidence of the accuracy of the factual data connected with the practice and provides that, where such evidence is not provided or is deemed insufficient, “the factual data are deemed to be inaccurate”. Paragraph 9 provides, together with the measure prohibiting the practice, for an administrative fine of EUR 5,000 to EUR 10,000,000; paragraph 9-bis raises the maximum to 4 per cent of annual turnover in cases penalised under Article 21 of Regulation (EU) 2017/2394 (Normattiva). For generic environmental claims, letter d-bis itself places the burden of demonstration on the party making the communication: the undertaking must be able to prove recognised excellence before disseminating the claim, not after it has been challenged.
Text written with AI remains a statement of the undertaking
Neither the Directive nor the Decree draws any distinction according to the tool with which the message was drafted. In our view a straightforward consequence follows. A claim generated by an AI system and published by the undertaking is, for all purposes, a claim of the trader, with the same consequences as a text written by an employee or an agency.
Regulation (EU) 2024/1689, the AI Act, does not alter this conclusion. Article 50(2) requires providers of systems generating synthetic content to mark it in a machine-readable format; paragraph 4 requires deployers publishing artificially generated or manipulated text “with the purpose of informing the public on matters of public interest” to disclose this, unless the content has undergone a process of human review or editorial control and a natural or legal person holds editorial responsibility for it. Paragraph 6 specifies that these obligations are without prejudice to other transparency obligations laid down in Union or national law (AI Act Service Desk). Regulation (EU) 2026/1744, the Digital Omnibus on AI, set 2 December 2026 as the date by which providers of systems placed on the market before 2 August 2026 must comply with the marking obligation (EUR-Lex); on the operational aspects we refer to our analyses of how to label today what will be marked in December and of the Commission guidelines on transparency.
The obligations under Article 50 concern the provenance of the content, not its truthfulness. Declaring that a text was generated with AI does not reduce liability for what the text states. We also consider that the promotional communication of a product is unlikely to qualify as text published to inform the public on matters of public interest: for most marketing copy the obligation in paragraph 4 does not even arise, whereas the ban in the Consumer Code applies in any event.
Critical aspects: generic wording and the responsibility of those who approve
The first aspect stems from the way generative tools work, and we flag it as our own assessment. Generative tools tend to produce precisely the generic vocabulary that the new rules target. They reproduce the prevailing language of existing promotional texts, and therefore expressions such as “sustainable”, “eco”, “green” or “low impact”, which in our view fall among the similar statements to those listed in recital 9. The risk is not limited to the adjective: a generated text may extend to the whole product an advantage that concerns a single component, attribute climate neutrality on the basis of offsetting or evoke certifications that the undertaking does not hold, engaging letters d-ter, d-quater and b-bis. An initial instruction (prompt) prohibiting such expressions reduces the problem, but does not eliminate it.
The second aspect concerns who approves the text. Article 50 gives weight to human review and editorial responsibility; under the Consumer Code, that review is the only effective safeguard against the ban. Human review is of value only if the reviewer knows the ban and has the evidence. In our view the undertaking should adopt a list of permitted and excluded expressions, a file of the evidence supporting each specific claim and a sign-off by a function familiar with the rules, before the text is published.
The third aspect concerns the European framework, which remains incomplete. The proposal for a directive on the substantiation and communication of explicit environmental claims, COM(2023)166, adopted by the Commission on 23 March 2023 and the subject of the European Parliament’s first-reading position of 12 March 2024, is still shown as ongoing in the EUR-Lex database (EUR-Lex) and indicated as pending by the Commission (European Commission). For specific claims, therefore, there is no European system of prior verification, and the fight against greenwashing remains entrusted to the general rules on misleading practices and to ex post enforcement by the Authority.
Conclusions
Since 27 September 2026, generic environmental claims without recognised excellence, uncertified sustainability labels and claims of neutrality based on offsetting have been practices misleading in all circumstances, and it is for the undertaking to demonstrate the accuracy of what it communicates. The use of artificial intelligence does not shift this responsibility: the obligations under the AI Act concern the provenance of content and are added to, without replacing, the rules on commercial practices. In the absence of the directive on explicit claims, communications and legal functions would be well advised to treat every generated text as a draft, to subject it to a review that checks the environmental wording and to retain the evidence before publication.
Author: Valentina Grazia Sapuppo
