4 of 9

7 February 2022

Advertising update – 4 of 9 Insights

Making environmental advertising claims – how to comply with the rules

Timothy Pinto and Ella Bazini look at the rules on making environmental claims in advertising and at key ASA investigations into allegations of 'greenwashing'.


Timothy Pinto

Senior Counsel

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Governments need to encourage consumers and businesses to be greener if countries are to meet their environmental targets, and consumers are increasingly looking for 'greener' credentials when making purchasing decisions. 

This has not been lost on marketers. Green, sustainable, natural, environmentally-friendly, carbon neutral, eco, organic, recycled, recyclable, biodegradable, low emissions, plastic-free, without harming your world and help save the planet are just some of the terms increasingly used to attract consumers interested in environmentally friendly products and services.  But how meaningful are these claims and what should consumers make of them?

While many marketers use these terms with genuine credibility, others have been accused of 'greenwashing' or 'green sheening' – making unfounded or deceptive green claims to persuade consumers to buy their products or services.

The regulators are watching

The UK's Advertising Standards Authority (ASA), Competition and Markets Authority (CMA), Department for Environment, Food & Rural Affairs (DEFRA) and Department for Business, Energy and Industrial Strategy (BEIS) have all set out guidance on making environmental claims:

  • The CAP and BCAP Codes have specific sections on environmental claims. The ASA conducted a review of these rules in September 2021 and decided that while the existing rules were sufficient, the rising number of misleading green claims warranted further guidance. The ASA released new guidance on 9 December 2021 to help marketers and agencies interpret the Codes. The ASA is also conducting specific enquiries on environmental claims in relation to aviation, cars, waste, animal-based foods and heating. In addition, it is undertaking research into consumer understanding of Carbon Neutral, Net Zero and Hybrid claims in the electric vehicle market.
  • The CMA has issued guidance for businesses, a Green Claims Code and a press notice which gave businesses until the close of 2021 to ensure that their claims complied with the law. The guidance states that claims must be truthful and accurate, clear and unambiguous and fully substantiated. On 10 January 2022, the CMA launched a review of environmental claims in the fashion sector and plans to look at other sectors in due course.
  • DEFRA and BEIS have provided guidance, principles and examples to promote the use of clear, accurate and relevant environmental claims in advertising.

The rest of this article focuses on CAP Code requirements and some key ASA rulings. 

CAP Code

The starting point for assessing marketing claims is Section 1 of the CAP Code, "The central principle for all marketing communications is that they should be legal, decent, honest and truthful. All marketing communications should be prepared with a sense of responsibility to consumers and society and should reflect the spirit, not merely the letter, of the Code". 

Crucial to the issue of greenwashing is Section 3, which covers misleading advertising rules.  In summary, marketing communications must not materially mislead consumers, either through what they include or what they omit.  Consumers must be given sufficient information to make informed decisions in relation to products, and marketers must hold documentary evidence which objectively substantiates the claims they make. Section 3 also covers making comparative claims, such as "greener" or "greenest". 

There are specific rules on environmental claims, in Section 11, including:

  • "The basis of environmental claims must be clear. Unqualified claims could mislead if they omit significant information.
  • The meaning of terms used in marketing communications must be clear to consumers.
  • Absolute claims must be supported by a high level of substantiation. Comparative claims such as "greener" or "friendlier" can be justified, for example if the advertised product provides a total environmental benefit over that of the marketer's previous product or competitor products and the basis of the comparison is clear.
  • Marketers must base environmental claims on the full life cycle of the advertised product, unless the marketing communication states otherwise, and must make clear the limits of the life cycle. If a general claim cannot be justified, a more limited claim about specific aspects of a product may be justifiable. Marketers must ensure claims that are based on only part of the advertised product's life cycle do not mislead consumers about the product's total environmental impact."

Life cycle of a product

A key concept is 'the full life cycle' of the product. This means that all aspects of a product's or service's environmental life cycle including its supply chain are important including:

  • how and where it was manufactured, produced or carried out
  • how it is transported from its place of manufacture or origin
  • its use or performance
  • disposal of the product, and any waste or by-products
  • the consequences of any environmental benefit claimed and the period in which it would be realised
  • whether the product or service has an overall adverse impact.

When is an environmental claim misleading?

The ASA has ruled on numerous environmental claims from which some general principles about what will be considered misleading can be drawn.  Recent examples across a variety of sectors include:

Dalradian Gold Ltd (2021)

A press ad for Dalradian Gold, a gold mine construction project included text stating:

  • '100% carbon neutral from day one. The mine will not contribute to climate change' and
  •  'There are also substantial quantities of silver and copper, metals which will be critical to enable the building of a renewable energy industry.'

The ASA ruled that average readers of the ad would interpret the first claim to mean that Dalradian Gold's proposed mine would be carbon neutral for the full life cycle of emissions. Dalradian was able to substantiate the first claim by presenting sufficient evidence of a credible plan to achieve carbon neutrality in accordance with recognised national and international frameworks, including third party validation. Therefore, the first claim was not misleading.

As for the second claim, the ASA said the readers would interpret it as meaning that a benefit of the proposed mine would be its extraction of substantial quantities of metals then used in the renewable energy industry.  Dalradian Gold provided no evidence that any quantity of silver and copper extracted from the mine would be used in this industry. This claim was held to be misleading.

Shell UK Ltd (2020)

The voice on a radio ad for the energy company claimed:

  • '…Although you might not be able to see it, your small actions can have a real impact with Shell. Drive carbon-neutral by filling up and using ShellGo+ today. Make the change. Drive carbon-neutral.'

According to the ASA, listeners were likely to infer that ShellGo+ was a fuel for which Shell would offset the carbon emissions related to that fuel purchase such that the customer could 'Drive carbon-neutral'.

ShellGo+ was in fact a loyalty scheme to which customers were required to sign up and then show their membership card when they made a purchase. The carbon emissions related to that fuel purchase would then be offset by Shell.

The ASA ruled that there was nothing in Shell's ad which might indicate that it was advertising a loyalty programme. The ad was misleading.

Hyundai Motor UK Ltd (2021)

Text on Hyundai's website, www.hyundair.co.uk, said:

  • 'Introducing the next generation of fuel cell vehicles: All-New NEXO. A car so beautifully clean, it purifies as it goes.'

The ASA held that consumers would likely understand this ad to mean that the car had negligible environmental impact and would remove impurities from the air as it was driven, such that no impurities caused by driving it would remain in the air.

The Hyundai NEXO had air filtration systems which would filter the air before it was used in its hydrogen fuel cell.  However, the ASA noted that particulates from brake and tyre wear would still be released into the air and would not necessarily be removed by the car, unless they happened to pass through its air filtration system. Particulates were a significant source of air pollution from vehicle use. The ad was therefore misleading.

Arla Foods Ltd (2017)

A press ad for Arla organic farm milk stated:

  • 'Good for the land… helping to support a more sustainable future.'

The ASA ruled that consumers would interpret this claim to mean that the production of the organic farm milk was undertaken in a way that would have an overall positive impact on the environment, taking into account its full life cycle from start to finish.

Arla Foods provided evidence on its organic farming methods which it believed were more sustainable than non-organic farming.  However, it had failed to provide evidence that their organic milk production had an overall positive impact on the environment, taking into account its full life cycle. The advert was misleading.

Plenish Cleanse Ltd (2019)

Posters for Plenish Cleanse's almond drinks said:

  • 'IT'S TIME TO GO NUTS. A recent study by the University of Oxford showed that the single biggest thing you can do to reduce your impact on the planet is switch to a plant-based diet.
  • Search 'Plenish' to get started. PLENISH… START SOMEWHERE.'

Two complainants were concerned that almond production could have a negative impact on water levels, particularly in areas of the world already affected by drought.

The ASA found that consumers would understand that switching from cow's milk to Plenish Cleanse's almond drink was one way they could transition to a more plant-based diet. They would therefore understand that Plenish almond drink had a lower environmental impact than cow's milk, based on the full life cycle of the product.

Plenish Cleanse showed that their almonds were not sourced from areas affected by drought and provided detailed data (including water use, greenhouse gas emissions, transport and packaging) to demonstrate that their almond drink had a lower impact on the environment than cow's milk, when taking into account the full life cycle of the product. Therefore, the ads were not misleading.

SCA Investments Ltd t/a Gousto (2020)

Gousto's website, www.gousto.co.uk, featured blog entries advertising their Eco Chill Box, stating:

  • 'Why Gousto’s Packaging Innovation Is A Huge Step Forward for Sustainability
  • … Eco Chill is a plastic-free insulation box…
  • …made of recycled paper and zero plastic…
  • … And most importantly, it’s 100% recyclable!'

Grocery Delivery E-Services UK challenged Gousto's claims.

The ASA held that consumers would interpret these claims to mean that, first, the box, and everything inside it, did not contain any plastic; and, second, the box was recycled by the majority of local authorities in the UK, and every component of the box was recyclable.

Gousto provided evidence that the box was made of paper and recycled paper. However, the box contained an ice-pack made of low density polyethylene plastic. 

Gousto also showed that their Eco Chill Box was recyclable and widely accepted in kerbside recycling by local authorities. However, there was no evidence that the ice packs were either widely recycled or recyclable.

On both counts, Gousto's marketing was misleading for failing to fully substantiate its claims.

Oatly UK Ltd (2022)

Recently, several Oatly ads were investigated.

First, two TV ads for Oatly's oat drinks, which included:

  • 'Oatly generates 73% less C02e vs. milk, calculated from grower power. To verify see www.oatley.com/helpdad.'

Paid-for Twitter and Facebook posts which stated:

  • 'The dairy and meat industries emit more C02e that all the world's planes, trains, cars, boats etc., combined. Need help talking to dad about milk? Go to oatly.com/helpdad.'

A press ad in the Sunday Times Style Magazine said:

  • 'Today, more than 25% of the world's greenhouse gases are generated by the food industry, and meat and dairy account for more than half of that'.

Finally, a press ad in the Guardian Weekend magazine included:

  • 'Climate experts say cutting dairy and meat products from our diet is the single biggest lifestyle change we can make to reduce our environmental impact'; and
  • 'If everyone in the world adopted a vegan diet, it would reduce food's annual greenhouse emissions by 6.6bn metric tons (a 49% reduction)'.

The ASA received 109 complaints challenging whether Oatly's claims were misleading and could be substantiated.

In respect of the TV ads, the ASA considered that consumers would understand the claim to mean that all of Oatly products generated 73% less C02e compared to any type of cows' milk. However, Oatly had only provided evidence in relation to their Oatly Barista Edition oat drink and whole cow's milk.  Therefore, the claim was not substantiated and was misleading

The ASA said the social media posts would be understood to mean that the emissions produced by the full life cycle of the transport industry had a lower overall impact than that produced by the full life cycle of the meat and dairy industry. Although Oatly's evidence had related to the full life cycle for the meat and dairy industry, it only related to part of the life cycle for the transport industry. Consumers would have understood the comparison was based on an equivalent and full life cycle analyses when that was not the case. Therefore, the claim was misleading.

For the Sunday Times ad, the ASA considered that although some consumers may have understood "meat and dairy" to include eggs, fish and other organisms in water environments, many would not. Oatly's evidence showed that these items counted significantly towards the figure for greenhouse gas emissions produced by the meat and dairy industry.  Therefore, the ad was misleading.

The first claim in the Guardian magazine was held to be understood as an objective claim based on scientific consensus. However, Oatly's source had in fact stated that a vegan diet was 'probably' the best way to reduce your environmental impact.  As Oatly left out that qualifier, it overstated the claim.  Also, the claim was only the opinion of one expert.  Therefore, the claim was misleading.

Finally, in respect of the last claim, Oatly provided figures from a comprehensive review relating to the environmental impact of moving to vegan diets and including data from 38,700 farms and 1,600 processors, packaging types and retailers across the world. Oatly had substantiated the claim and it was not misleading.

What general principles can businesses take from recent ASA decisions on green claims?

Key takeaways for businesses include:

  • Regulators are increasingly scrutinising businesses over their environmental advertising and marketing claims.
  • Marketers should expect that members of the public and/or competitors will challenge their environmental advertising claims.
  • Businesses must be very clear when making any green claims, including by reference to the full life cycle of the product unless the claim is expressly limited.
  • Businesses must be able to substantiate all environmental claims with objective technical documentary evidence.

Find out more

For advice on the issues covered in this article, please reach out to a member of our Brands & Advertising team.

This article was co-written by Ella Bazini.

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