ESG Collection – 5 / 5 观点
The content of this article has been updated to reflect legal changes as at March 2023.
With many UK consumers struggling with high energy prices, the cost-of-living and inflation, the UK's Advertising Standards Authority (ASA) is increasing its focus on the regulation of environmental or 'green' advertising claims. This has been demonstrated by a string of cases in January 2023, (including Keilini Technology discussed below), in which the ASA ruled that advertising electric fan heaters as an energy efficient alternative to conventional heating via gas played on consumer concerns about rising energy bills, and given the lack of substantiation, the ads were misleading.
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', 'energy efficient', '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. This article looks at what marketers can do to minimise the risk of regulatory scrutiny.
The ASA, Competition and Markets Authority (CMA) and Department for Environment, Food & Rural Affairs (DEFRA) have all set out guidance on making environmental claims.
CAP and BCAP
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 research and advice, including the following:
The CMA has issued guidance for businesses and a Green Claims Code and check list. The guidance states that claims must be truthful and accurate, clear and unambiguous and fully substantiated. The CMA has also taken the following actions:
DEFRA has 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. That is because the ASA has the most guidance and, in practice, is more likely to deal with green advertising claims.
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 – and this includes omitting to inform consumers of material information on non-environmentally friendly activities, as the HSBC decision discussed below makes clear. 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. Qualifications must be clear. They may clarify but must not contradict the claims that they qualify. Section 3 also covers making comparative claims, such as "greener" or "greenest".
There are specific rules on environmental claims, in Section 11, including:
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:
The ASA has ruled on numerous environmental claims. In the last part of this article, we discuss some of these rulings in detail. Before that, here are some general principles drawn from the cases:
We conclude with some example ASA decisions across a variety of sectors to illustrate the above points.
A website ad for a Keilini Portable Heater contained the following:
The ASA considered consumers would interpret the ads as promoting a product that provided a viable alternative to all heating systems, including gas central heating and to mean that the product would provide heating at cheaper prices than conventional heating systems.
The ASA said it was highly unlikely that a small electric heater would be a viable source of sufficient heating for most households, that gas was generally cheaper than electricity and the claims had not been substantiated, so the ads were misleading.
A poster for Lufthansa said:
The ASA considered the claim 'PROTECTING ITS FUTURE' was likely to be interpreted by consumers as an environmental reference to how Lufthansa's approach to aviation was protecting the future of the world, given that this text appeared immediately after the text 'CONNECTING THE WORLD', and was superimposed on a picture of the globe.
The claim was not qualified, and the ASA thought consumers would understand it to mean that Lufthansa had already taken sufficient steps to ensure that the net environmental impact of their business was not harmful.
The ASA understood that air travel was known to produce high levels of both CO2 and non-CO2 emissions which were making a substantial contribution to climate change. There were currently no environmental initiatives or commercially viable technologies that would substantiate the absolute claim.
Given the basis of the claim had not been made clear and it had not been adequately substantiated, the ad breached the Code.
A poster for Pepsi Lipton on a bus shelter included text stating:
The ASA said consumers would understand the claim '100% RECYCLED*' alongside images of the bottle with the label and cap to mean that all components of the Lipton Ice Tea bottle (ie the bottle, cap and label) were made entirely from recycled materials. The qualifying wording appeared in very small text in the left-hand bottom corner of the ad, and therefore it could be overlooked.
The ASA ruled that, even if some consumers had seen the qualification, because the cap and label were not made from recycled materials, and the overall impression created was that all parts of the bottle were made entirely from recycled materials, the qualification was insufficient to counter that impression. This claim was therefore held to be misleading.
Several Oatly ads were investigated. The ASA received 109 complaints challenging whether Oatly's claims were misleading and could be substantiated.
First, two TV ads for Oatly's oat drinks, which included:
The ASA considered that consumers would understand the claim to mean that all of Oatly products generated 73% less CO2e 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.
Paid-for Twitter and Facebook posts stated:
The ASA said the claim 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 (accounting only for the emissions coming directly from using the vehicle). As equivalent parts of the life cycle had not been accounted for in the emissions figures used, the claim overstated the emissions from the meat and dairy industry compared to the transport industry. The ASA considered it was extremely unlikely the claim would have been supported if Oatly had used equivalent and full life cycle analysis. 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.
An ad in the Sunday Times Style Magazine said:
And an ad in the Guardian Weekend magazine included:
For the Sunday Times ad, Oatly substantiated the 25% figure for greenhouse gases part of the claim. However, the ASA considered that although some consumers may have understood 'meat and dairy' to include eggs, fish, shellfish and other organisms in water environments, many would not. Oatly's evidence discussed the greenhouse gas emissions for meat, aquaculture (including fish and shellfish), eggs and dairy. Egg and aquaculture industries would have been a significant contributor for the emissions. Because the claim would be understood by many consumers as relating only to meat and dairy (without eggs, fish etc), the ad was therefore misleading.
The first claim in the Guardian magazine was held to be understood as a definitive, objective claim based on scientific consensus. However, Oatly's source was one expert on climate change. Furthermore, he had in fact stated that a vegan diet was 'probably' the best way to reduce your environmental impact. As Oatly left out that qualifier and the claim was only the opinion of one expert, it had overstated the position. Therefore, the claim was misleading.
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.
A video on demand, YouTube and TV ad included the following claims:
The ASA received 26 complaints challenging whether Innocent's claims were misleading and could be substantiated, including campaigning group Plastics Rebellion.
The ASA said consumers would understand the claims to mean that Innocent was environmentally friendly and that purchasing their products had environmental benefits. The ASA required Innocent to hold evidence proving a positive environmental impact.
Although Innocent was undertaking actions which were aimed at reducing the environmental impact of their products, that did not demonstrate that their products had a net positive environmental impact over their full lifecycles. The bottles included non-recycled plastic and the extraction of raw materials, and subsequent processing of those materials in order to produce the bottle would have a negative impact on the environment. Therefore, the claims were misleading.
A poster seen on the London Underground featured an image of a Tier electric hire scooter with text including:
This ad was challenged by the ASA (showing that the ASA can be pro-active).
The ASA considered the ad was an absolute claim. It would be understood to mean that the Tier electric scooter caused no environmental damage over the full lifecycle of the hire scheme, rather than that it had lower carbon emissions than the comparator vehicles.
The claim was not expressed in a more limited comparative way, such as ‘environmentally friendlier’, neither did it make clear if it was intended to refer to swapping to a Tier scooter from another form of transport and, if so, what that was.
While Tier had provided analysis of the measures they had implemented to demonstrate the environmental impact of their electric scooter, the ASA considered that the evidence provided did not demonstrate that the Tier E-Scooter scheme caused no environmental damage over its full lifecycle. Therefore, the ad was misleading.
Tesco ads on TV, video on demand, radio, press, social media and websites were variations of the following radio ad:
The ASA said consumers would understand that the ads were promoting a swap from a meat burger, such as beef, to Tesco’s Plant Chef plant-based burger, rather than understanding the claim to be a general claim about swapping from meat to plant-based food.
Claims such as 'a little swap can make a difference to the planet', 'even better for the planet' and 'a little swap is […] even better for the planet' would be understood to mean that such a swap would make a positive environmental impact on the planet.
Because the ads implied that switching to products in the Plant Chef range would positively affect the environment, the ASA expected to see evidence that that was the case based on the full life cycle of the Plant Chef burger in comparison with a meat burger. The evidence provided did not demonstrate this, therefore the claims were not substantiated and were likely to mislead.
A radio ad (and a variation in a TV ad) included the following claims:
The complainants believed the chickpeas, lentils and beans in the ads were grown and imported from abroad, and so would have a greater environmental impact than domestically produced meat.
The ASA thought consumers would understand that the ads were advocating a reduction in meat portions, with examples of substitutions for plant protein equivalents, and the ad meant that reducing meat consumption in our diets was better for the environment, based on the environmental impact associated with the meat industry compared with the production of plant proteins.
The ASA said the ads were focusing on a change in diet, rather than a comparison of domestic and imported produce. The ads were making a general claim regarding the overall accepted premise that a plant-based diet was, in general terms, better for the environment. They did not feature or promote any particular product range but only showed the ingredients, which could be purchased at many retailers.
The claim highlighted a benefit of how chickpeas grew, and Sainsbury’s provided a link to a study which supported the claim. The ads were focusing on one aspect of the chickpea’s life cycle and highlighting a reason why reducing the portion size of chicken in a meal and substituting that for chickpeas would be better for the environment.
The ads featured a URL which took consumers to a page with information on Sainsbury's 'Helping everyone eat better' campaign. This outlined the Eatwell Guide -the UK Government’s dietary recommendations and provided further links to reports and articles, which were used to substantiate the claim.
The ASA concluded the claims were not misleading.
A TV ad for Persil washing liquid contained the following:
The ASA said 'kinder to our planet' was an environmental claim that was comparative. However, the basis of the comparative claim 'kinder' was likely to be ambiguous. The ASA thought the ad did not state or explain the basis of the claim, such as whether the advertised liquid detergents were 'kinder' in comparison to Persil’s own previous products or other products.
According to the ASA, while the ad highlighted the benefits of the detergents – being effective in cold and quick cycles, and the use of recycled plastic – it was not clear if those were new or recent developments, and whether they were specific to the advertised detergents or applied more widely to Persil’s range of products.
Furthermore, the ad featured messaging about Persil’s wider environmental initiatives including encouraging people to personally take action to care for the environment, and showing children collecting plastic litter. In the context of an ad with several messages relating to environmental issues, the meaning and basis of the claim 'kinder to our planet' was unclear.
The ASA said it had not seen evidence or analysis to demonstrate the overall environmental impact of the featured liquid detergents over their full life cycles, compared with Persil’s own previous products or other products, in support of the claim 'kinder to our planet'. Therefore, the claim was not substantiated and was likely to mislead.
Bus stop posters contained images of nature and said:
The ASA received 45 complaints challenging whether the ads were misleading as they omitted HSBC's contribution to CO2 and greenhouse gas emissions.
According to the ASA, the ads would be understood to mean that HSBC was making, and intended to make, a positive overall environmental contribution, was committed to ensuring its business and lending model would help support businesses’ transition to models that supported net zero targets and undertaking an environmentally beneficial activity by planting trees which would make a meaningful contribution towards the sequestration of greenhouse gases in the atmosphere.
The ads appeared in the run up to COP26. The ASA considered that consumers would not expect that HSBC, in making unqualified claims about its environmentally beneficial work, would also be simultaneously involved in the financing of businesses which made significant contributions to carbon dioxide and other greenhouse gas emissions and would continue to do so for many years into the future.
The ASA reviewed HSBC's Annual Report which indicated that its current financed emissions stood at around 65.3 million tonnes of carbon dioxide per year for oil and gas alone, which the ASA said was likely to be much higher once other carbon-intensive industries such as power and utilities, construction, transport and coal mining had been included. HSBC intended to continue funding thermal coal mining and power production – a fuel that emitted high levels of CO2 and other greenhouse gas emissions – until 2040.
The ASA acknowledged HSBC’s comments concerning the level of natural gas and oil production required up to and in 2050, and understood that some level of financing would be required for this. However, despite the initiatives highlighted in the ads, HSBC was continuing to significantly finance investments in businesses and industries that emitted notable levels of carbon dioxide and other greenhouse gasses.
The ASA did not consider that consumers would know that that was the case. The ASA considered it was material information that was likely to affect consumers’ understanding of the ads’ overall message, and so should have been made clear. The ads omitted material information and were therefore misleading.
For advice on the issues covered in this article, please reach out to Timothy Pinto or another member of our Brands & Advertising team.
Timothy Pinto looks at recent ASA decisions on greenwashing in the context of the UK's regulatory framework.