New rules for green advertising as of September 2026: Austria adopts transitional provision for "old stock" situations

In an attempt to tackle transitional issues affecting goods already on the market, the Austrian legislator included a "grandfather clause" (limiting civil enforcement) in the national transposition law adopted today. A week earlier, the EU Consumer Protection Cooperation Network (CPC Network) published a Common Understanding relating to the public enforcement of "old stock" situations. However, these new measures will only limit the legal risks associated with non-compliance in certain cases.

What changes on 27 September 2026

The Austrian legislator adopted its implementation of the EmpCo Directive, including explanatory notes, earlier today. As expected, the new rules have been added to the Austrian Unfair Competition Act (Gesetz gegen unlauteren Wettbewerb –UWG). In doing so, the legislator has closely followed the wording of the Directive, in particular with regard to the scope of the new rules on environmental advertising, which is limited to B2C situations.

The tightened legal framework will enter into force on 27 September 2026. In practice, this means that, as of this date, any commercial practice during, before, or after a commercial transaction in relation to a product will have to comply with the rules under the EmpCo Directive. And, as we laid out in our last blog post on the EmpCo Directive, there is much that companies will need to review – and perhaps change – when it comes to marketing their environmental performance.

What could be the consequences if companies fail to comply with the new regime?

Under Austrian law, claims of misleading advertising are primarily enforced through private litigation. Competitors, consumer protection bodies (e.g. the Austrian Association for Consumer Information (Verein für Konsumenteninformation, VKI) or the Austrian Association for Consumer Protection (Verbraucherschutzverein, VSV)), certain public bodies (such as the Austrian Federal Chamber of Employees (Bundesarbeitskammer, BAK) or the competition authority (Austrian Federal Competition Authority (BWB)) can seek injunctive relief – including preliminary injunctions – as well as product removal, recall and publication of the judgment at the infringer's cost. Considering also that non-compliance with an injunction can trigger increasing fines, the practical implications of private litigation may turn out to be severe.

Beyond private enforcement, Section 22 of the Austrian Unfair Competition Act allows for administrative penalties in cases of widespread infringements, including those with an EU dimension. This, too, may lead to significant consequences for companies that fail to comply with the rules introduced by the EmpCo Directive on a larger scale.

Last but not least, private as well as public enforcement in relation to allegations of "greenwashing" could also come with a significant reputational risk for advertisers. Consumer protection bodies in particular are usually vocal in their efforts to enforce misleading advertising.

What happens to products already produced or put on the market before 27 September 2026?

Belatedly but importantly, both the Austrian legislator and EU institutions have recognised that many companies face genuine and specific transitional challenges in the early stages of applying the new rules. Not only in Austria but also in a number of other Member States, the EmpCo Directive has not yet been transposed into national law, even though the deadline for transposition passed on 27 March 2026. And, even if Member States have transposed the Directive in time, many goods are commissioned and produced months, even years, in advance or remain on the shelves for a long period of time.

To provide some legal certainty for producers and traders, the Austrian transposition of the EmpCo Directive foresees a three-year exemption from private enforcement for violations of the new provisions on green advertising, provided the products were already on the market before 27 September 2026 (the "grandfather clause"; see the new art 44 (16) UWG). This means that, while such products would still be considered unlawful under the new regime, there would be no risk of courts issuing (preliminary) injunctions that could force companies to take products off the market from one day to the next.

At EU level, the issue of existing stock has also been addressed with regard to public enforcement (thus not affecting the risk of private litigation). The national competent authorities of CPC Network published a Common Understanding on "old stock" situations in June 2026. While the document is non-binding, it contains a concrete commitment to proportionate public enforcement: authorities may refrain from requiring the destruction or recall of products to address transitional compliance issues and should generally avoid measures that would create disproportionate costs or unnecessary environmental harm.

Importantly, the CPC Network takes a broader view of "old stock" than the Austrian transpositional law, which only refers (at least explicitly) to products already placed on the market. Under the Common Understanding, "old stock" explicitly includes products or packaging that were manufactured or ordered before 27 September 2026 – an approach that makes sense not only from a legal certainty perspective but also from a sustainability standpoint. After all, the ultimate purpose of the EmpCo Directive is to protect the environment, not to encourage the premature destruction of existing products.

How to strategically approach the new challenges ahead

Businesses which are concerned that advertisements, products, packaging or other materials may be affected by the new regime, green claims and labels currently used by the company should be identified, the associated risks should be assessed, and – if necessary – risk mitigation measures should be put in place. A key aspect of this process will be to consider whether a commercial practice could fall under special transitional rules for "old stock".