When Norway banned the Higg: the NCA case against H&M and Norrøna 2022 and lessons for ECGT transposition

The NCA Norway case against H&M and Norrøna: why it matters to the European textile sector

The European regulatory ecosystem in textile sustainability experienced a tectonic fracture during the summer of 2022. The Norwegian consumer-protection authority intervened directly on the most ubiquitous impact-measurement tool in the industry. On 14 June 2022, the Norwegian Consumer Authority issued official notifications to the brands H&M and Norrøna. The object of the intervention lay in the use of the Higg Materials Sustainability Index as evidentiary substrate to articulate environmental declarations aimed at the final consumer.

It is imperative to draw a strict analytical delimitation: the NCA intervention constitutes a procedure of public law and statutory consumer protection, grounded in European directives on commercial practices. It differs ontologically from the civil litigation articulated as class actions in the United States jurisdiction against H&M, based on tort law or unjust enrichment. It also differs from the rulings issued by the Advertising Standards Authority in the United Kingdom, an advertising self-regulation body. The NCA holds coercive and sanctioning powers equivalent to the regional consumer directorates in Spain.

The anatomy of this case prefigures with millimetric exactness the legal architecture that Directive (EU) 2024/825, known as ECGT (Empowering Consumers for the Green Transition), now codifies at Community level. That directive crystallises the Norwegian doctrine at legislative level by amending Directive 2005/29/EC on unfair commercial practices. The transposition of the ECGT in Spain, which must be executed before 27 March 2026 (with effective application from 27 September 2026), will raise the evidentiary standard required of European textile brands.

Detailed chronology: from the Norrøna ruling to the global Higg suspension

The regulatory escalation that culminated in the dismantling of the use of the Higg MSI before the consumer requires a precise temporal dissection. The intervention did not materialise ex abrupto, but through progressive methodological scrutiny. The NCA’s initial investigation focused on the Norwegian outdoor-equipment brand Norrøna, which had implemented a labelling system on its organic-cotton garments based on the Higg MSI score data. The authority assessed whether the percentage claims of reduced water impact and emissions, displayed on the physical labels and in e-commerce, possessed empirical backing attributable to the specific garment acquired by the user.

The conclusion of the investigation phase resulted in the communications of 14 June 2022. The NCA sent official letters both to Norrøna, demanding the cessation of the claims, and to the Swedish multinational H&M, which also used sustainability metrics derived from the Higg MSI in its Conscious collections. The letters warned that the use of global averages of material impact to articulate product-specific declarations infringed the prohibition of misleading commercial practices. The Norwegian authority set a peremptory deadline: a deadline of 1 September 2022 for H&M to adjust its marketing practices and withdraw the claims based exclusively on that tool.

The repercussion in the global textile industry was seismic and of immediate execution. In direct response to the NCA mandate, in July 2022, the Sustainable Apparel Coalition announced the global suspension of the use of the Higg MSI for consumer-oriented communication. The organisation halted the generation of new public sustainability profiles while initiating a methodological-review process in collaboration with independent assessors.

The technical NCA argument: global averages are not product-specific evidence

The dogmatic core of the NCA intervention lies in the asymmetry between the nature of the data used and the claim projected towards the buyer. The Higg MSI operates through the aggregation of Life Cycle Assessment data at a global industry level, providing average scores (cradle-to-gate) for generic material categories. The authority argued that applying the global average of the « organic cotton » category to claim that a specific organic-cotton T-shirt reduces water consumption by an exact percentage is materially and legally fallacious.

The agency’s technical argumentation was set out in an unequivocal regulatory warning. The authority articulated the following literal requirement: « For H&M to avoid misleading marketing, H&M should specifically assess / reassess the justification for using the Higg MSI as a communicative tool in marketing, and these assessments should be conducted considering our conclusion in the Norrøna case ».

This technical resolution aligns strictly with the current text of the ECGT directive. The European rule introduces an express prohibition on making an environmental claim about the whole product when in reality it only concerns a particular aspect of it. The directive stipulates that comparisons between products based on environmental characteristics must use a common method and common assumptions, comparing material and verifiable characteristics.

Applicable framework in Spain: how ECGT 2024/825 will replicate the NCA logic

The doctrine established in Norway does not constitute a peripheral jurisdictional anomaly; it is the operational matrix that will be applied in Spain in a binding manner through the incorporation of the Community acquis. Directive (EU) 2024/825 imposes an inexorable calendar. It is appropriate to cite literally the mandate contained in the articles on transposition: « By 27 March 2026, Member States shall adopt and publish the measures necessary to comply with this Directive ». Article 4 of the directive additionally establishes that Member States shall apply those provisions from 27 September 2026.

The applicable framework in Spain, channelled through the General Law for the Defence of Consumers and Users, will undergo a profound doctrinal transformation. The ECGT introduces substantial modifications to Directive 2005/29/EC, adding commercial practices that shall in all circumstances be considered unfair. Among them, the prohibition on making a generic environmental claim (such as « ecological », « green » or « environmentally friendly ») in relation to which the trader cannot demonstrate recognised excellent environmental performance relevant to the claim. Recognised excellent performance requires compliance with Regulation (EC) No 66/2010 on the EU eco-label or officially recognised EN ISO 14024 type I labelling schemes.

The burden of proof shifts radically towards the issuer of the claim. If a Spanish brand claims that its polyester product has a reduced carbon footprint, it will not suffice to present a generic certification from the granulate supplier. The penalty regime, whose execution will fall both on the state consumer authorities and on the directorates-general of the autonomous communities, will apply the Norwegian logic: without traceable primary evidence down to the specific product unit, the claim will be presumed misleading.

Five operational lessons for European textile brands pre-ECGT

The imminence of the transposition deadline requires the adoption of immediate corrective measures in the communication and sourcing protocols of textile brands.

First. Relative claims require an explicit comparative reference. Claiming that a fabric has « fewer emissions » or « lower water consumption » lacks legal validity if the element of contrast is not established.

Second. The certification of percentages of recycled or organic material must be substantiated per functional unit. Percentage declarations of sustainable composition cannot be derived from a generic mass balance at corporate level if the claim appears on the product label. The brand must demonstrate physical traceability.

Third. The requirement of a Tier 2 and Tier 3 documentary chain with product data. The future regulation will require that impact assessments include primary information provided by the trader on the specific environmental impacts. Control of the spinning mill, the weaving plant and the dyeing facility is non-negotiable.

Fourth. The execution of a preventive audit of the inventory of claims before 27 March 2026. Brands must inventory every claim present in their e-commerce, hangtags and point-of-sale advertising, eliminating empty adjectives (« eco-friendly », « sustainable ») that lack a type I certification substrate or equivalent.

Fifth. The legal distinction between B2B claim and B2C claim. Data-aggregation tools such as the Higg MSI retain their technical validity for internal impact management (the upstream phase) and business-to-business benchmarking. However, their literal transfer to advertising aimed at the final consumer violates the required standard of material information.

What is coming in Spain: ECGT transposition and reform of commercial claims under the LGCU

The regulatory horizon in Spain will converge inexorably towards the maximum restriction on issuing environmental declarations. The legislative calendar imposes the adoption and publication of the national transposition measures of the ECGT directive by 27 March 2026 at the latest, with their effective application from 27 September 2026. The articulation of this directive will require a substantive reform of the Law on Unfair Competition and of the General Law for the Defence of Consumers and Users.

The institutional architecture for compliance control will involve the Spanish Agency for Food Safety and Nutrition, the Ministry of Consumer Affairs and the competent regional authorities. These entities will assume sanctioning powers to eradicate sustainability labels lacking independent certification or unsupported by public authorities. This supervision will intertwine with the fifth pillar of the Community strategy, which enshrines the provision of trustworthy information to the consumer, and will be structurally reinforced when the processing of the Proposal for a Directive on Green Claims (Green Claims Directive, COM(2023) 166 final) concludes.

The convergence of the ECGT (which prohibits the misleading practice ex post) and the future Green Claims Directive (which requires ex ante validation) configures a zero-tolerance regime. Cases such as the NCA warning to H&M in 2022 represent mere preludes to an environment where scientific justification, granular traceability of the functional unit and transparency in the calculation method will constitute requirements of commercial operability in the internal market.