ClientEarth Communications
6th July 2022
We're supporting campaigners Fossielvrij Netherlands and Reclame Fossielvrij in a lawsuit in the Netherlands against KLM, which challenges the Dutch airline’s misleading marketing that promotes the sustainability of flying.
In July 2022, we supported Fossielvrij Netherlands and Reclame Fossielvrij in filing a groundbreaking lawsuit against KLM, marking the first-ever legal claim challenging airline industry greenwashing.
The case argues that KLM's advertising misled the public by giving the impression that the airline is tackling climate change, despite the fact that its plans for air traffic growth will exacerbate the crisis. It also challenges KLM's carbon offset marketing, which suggests customers can reduce their flight's impact by supporting reforestation projects or the airline’s costs of purchasing small quantities of biofuels.
Almost a year later, in June 2023, a significant milestone was reached in the case. The District Court of Amsterdam granted permission for the lawsuit to proceed to a full trial, which means we are one step closer to holding KLM accountable for its misleading narrative around the airline’s climate impact and its attempt to maintain its 'licence to grow'.
We, along with Fossielvrij Netherlands and Reclame Fossielvrij, sent a letter of demand to KLM, accusing the airline of misleading marketing that falsely promotes the sustainability of flying.
A discussion with the airline’s team take place where we set out our concerns with its ads. KLM refuses to stop advertising its misleading claims.
Fossielvrij and Reclame Fossielvrij file the lawsuit in the District Court of Amsterdam with our support.
Another meeting takes place where KLM proposes some changes to its climate advertising and its website in an effort to stop the case going ahead. Its website would say more prominently that aviation is far from sustainable today. But the company continues to stick to the same core messages that it is on the path to more sustainable travel and on track to be a net zero business by 2050, and that customers can purchase ‘compensation’ for the impact of the flights.
KLM files its first round arguments on the admissibility of the claim.
KLM and other aviation groups sue the Dutch government to delay its plan to cap air traffic at Amsterdam Schiphol airport at 2015 levels. The government appeals the lower court’s decision in favour of the aviation industry.
Hearing takes place on the greenwashing claim’s admissibility, in which KLM informs the judge it has now decided to drop its problematic ‘Fly Responsibly’ campaign. However, it makes no commitments regarding its future advertising, nor does it address its offsetting marketing.
Court gives permission for lawsuit to proceed to a substantive hearing.
On the same day as the judgment, the KLM CEO said at its AGM that she agreed with Fossielvrij that the advertising in the case “is not the right way”. But responding to a question about how it planned to influence public perception, the airline group said it would communicate on its sustainability plan as it needs to “secure the conditions for its competitiveness and profitability”.
The airline industry has a climate problem. Aviation relies on highly polluting fossil fuels, and expert studies warn that the airline industry cannot reach net zero by 2050 and align with climate goals without lowering air traffic. One transatlantic return flight is about the same emissions as an EU person uses to heat their home for a year.
However, KLM’s marketing – particularly its ‘Fly Responsibly’ campaign – attempts to convince consumers otherwise. It presents the airline – and the industry - as 'creating a more sustainable future' and on track to reduce its emissions to net zero by 2050, which simply doesn’t square with aviation growth plans.
The lawsuit argues that these ads are therefore misleading and violate European consumer law. It also takes issue with KLM’s offers for customers to buy carbon offset products to reduce the impact of their flight by funding reforestation projects or the airline’s costs when it buys small amounts of biofuels.
An expert evidence report submitted with the court filing found that KLM cannot validly claim that donating toward reforestation compensates for the climate impact of flying, and that a donation toward KLM’s biofuel costs wouldn‘t be ‘compensation’ either.
These offset promotions do not limit the damage the airline industry causes to the climate, and marketing them risks undermining the urgent action needed to minimise climate catastrophe.
We’re going to court to demand KLM tells the truth about its fossil-fuel dependent product. Unchecked flying is one of the fastest ways to heat up the planet. Customers need to be informed and protected from claims that suggest it is not.
Hiske Arts, campaigner at Fossielvrij
In addition to dropping its ‘Fly Responsibly’ campaign, KLM also changed how it markets its offset promotions. Instead of a ‘CO2ZERO’ label, it now advertises offsets products under the label of ‘CO2 Impact programme’. But the change did not remove the same flawed offset claims that gives customers the false impression that they can ‘reduce your CO2 emissions'.
Worse still, KLM is offering frequent flier points to customers that buy these products, incentivising more frequent flying along with ‘compensation’ for the climate impact of the flights.
KLM also argued that that Fossielvrij – as a climate campaigning organisation – has no place bringing a legal challenge against misleading advertising.
But the Court disagreed. It found that Fossielvrij represented people affected by the climate crisis as well as consumers and could provide “efficient and effective legal protection” for those parties.
The judge also concluded that the greenwashing allegation has sufficient merit to proceed, and that the claimant demonstrated the link between aviation sustainability advertising and worsening climate change sufficiently for this stage .
This is a big win not only in the KLM lawsuit, but in the wider fight against greenwashing: it establishes for the first time that an environmental non-profit can bring a greenwashing claim under the recently passed Dutch class action law.
We urgently need to reduce air traffic to safe levels to keep a just and liveable world within reach. The law should not allow airlines to compete for business on claims that they are tackling the climate crisis, when the reality is they are fuelling it.
Johnny White, ClientEarth lawyer
KLM and the airline industry continue to pursue growth year after year, relying on a package of speculative future technologies, limited alternative fuels and other flawed ‘solutions’ to reassure people that aviation is on the path to net zero by 2050. Whilst doing so, they are also lobbying intensively to water down aviation climate regulation.
Flying is one of the fastest ways to heat up the planet. The coming years in the climate fight are crucial, significant reductions in emissions and regulation to limit air traffic are needed to keep a liveable planet for all. Greenwashing delays this critical action and allows airlines to preserve the space for plans to burn increasing volumes of damaging fossil fuels.
Prioritising aviation’s climate damage is not a fair net zero transition plan. The airline industry’s impact is primarily from a small group of frequent flyers, when it is people with less money, people in the Global South and future generations that are already suffering the most as the world gets dangerously hotter. Just one percent of the world’s global population cause 50% of commercial aviation emissions, whilst the overwhelming majority of people globally have never taken a flight.
Trying to reassure customers on the false premise that a small payment to tree planting projects or ‘sustainable’ fuel contributions compensates for flight emissions undermines urgent climate action, is gravely misleading, and, the claim argues, is unlawful.
Johnny White, ClientEarth lawyer
We want to enforce the law, and to ensure that people are not misled.
Ultimately, we are calling for a policy solution fit for urgent decarbonisation - a ban on all fossil fuel advertising in the EU to stop companies like KLM from continuing to mislead the public over what is needed reduce the airline industry’s impact on the planet and people. We need to clean up advertising in order to clean up the climate.
Since KLM said it has discontinued its 'Fly Responsibly' ads, the Court has permitted Fossielvrij to update its claim. Once it has done so, KLM will have six weeks to submit a defence, before moving forward to the trial.
A translation of the legal letter dated 24th May 2022 sent by Fossielvrij NL and ClientEarth can be found here.
A translation of Fossielvrij NL’s claim against KLM filed on 6th July 2022 can be found here.
