With environmental issues increasingly at the forefront of consumer, brand and society thoughts (perhaps even more during the current global pandemic), there is likely to be an increase in "green" product launches. Whilst welcome, brands should remain mindful of the difficulties in successfully advertising such products and making any environmental claims.
We previously explored this topic and the steps businesses can take to reduce the risk of falling foul of the UK's advertising requirements. More recently, there have been a number of Advertising Standards Authority (ASA) rulings, which confirm the difficulty in walking the regulatory tightrope and, in marketing "green" products, whilst appropriately evidencing environmental claims to ensure that they are not misleading.
The key rules under the CAP Code (covering non-broadcast advertisements) and BCAP Code (covering broadcast advertisements) for ASA investigations into "green" claims are (i) misleading advertising and (ii) environmental claims.
In relation to misleading advertising (Rule 3 of the CAP Code and Rule 3 of the BCAP Code), both codes state that marketing must not materially mislead consumers (including by exaggerating the capability of a product) and marketers must hold documentary evidence to prove claims that consumers may view as objective. In addition, Rule 11 of the CAP Code and Rule 9 of the BCAP Code require advertisers to, amongst other things:
- explain the basis of environmental claims;
- qualify claims where necessary;
- unless stated otherwise, use a full life cycle assessment when considering a product’s environmental impact; and
- hold robust evidence for claims and comparisons.
Three recent ASA rulings demonstrate the high threshold for substantiating and evidencing environmental claims:
- The ASA ruled against Quorn's recent television advert for a food pot, which included the statement that the food pot "helps us reduce our carbon footprint". Whilst this was similar to a previous Quorn advert, which successfully relied upon a report from the Carbon Trust to substantiate its "cradle to gate" claims, the key difference was that the basis of the claim to "reduce our carbon footprint" was unclear. For example, it was not clear how the customer's purchase of the product could help them reduce their carbon footprint, nor what the claimed reduction was being measured against. The ASA found that the basis of any carbon reduction was likely to be material information which consumers would need in order to make an informed decision about the product. It further noted that individuals would interpret this statement as a comparison of the Quorn product against others and that, by choosing the Quorn food pot, consumers could reduce their carbon footprint immediately. Therefore, the basis of the claim had not been provided and so the statement was misleading. Particularly, the ASA noted that Quorn's reference to its certification from the Carbon Trust in the advert was also confusing as it did not make clear that the certification was for Quorn's general commitment to reduce its carbon footprint over time.
- A complaint that a website advert by Lakeland Paints made misleading and inadequately substantiated claims about the products' effectiveness to absorb air pollutants was upheld. The advert claimed that for "24 hours a day all year round" the product would absorb around 98-99% of two pollutants. Whilst Lakeland Paints provided internal and third party testing for one type of pollutant (the third party testing resulted in a lower absorption efficiency than advertised by Lakeland Paints), it did not do so for the other pollutant. Additionally, the tests that were run were only carried out over a 24-hour period. The ASA ruled that the claims were in breach of Rule 3.7 of the CAP Code, as the advert's claims could not be substantiated, and were misleading.
- In a magazine advert, Esso made a number of claims concerning carbon capture technology. These included that "scientists believe that carbon capture is a critical technology to help meet… goals for reducing CO2" and that fuel cells could capture CO2. After investigating, the ASA held that the claims could be substantiated and were not misleading. Importantly, on the first point, three reputable reports indicated there was a strong informed or scientific consensus that carbon capture is a critical technology to reduce CO2, which meant that the first claim would not mislead. Regarding the claim on fuel cells, the complainant suggested that the statement was misleading since the advertised fuel cells were not functionally capable of capturing CO2. Esso explained that a particular type of fuel cell (molten carbonate fuel cell) could capture CO2. The ASA noted that few consumers would be aware of this technicality and that Esso was simply referencing "fuel cells" as a way of simplifying its message.
The above rulings show how tricky it can be for brands to promote their products as environmentally friendly, with the ASA particularly interested in whether (i) environmental claims are clear, and so do not mislead consumers (for example, by excluding relevant information), and (ii) the claims can be supported by verifiable (preferably independent) evidence, such as in the Esso case.
Brands which substantively put environmental, social and governance (ESG) issues at the heart of their businesses are increasingly seeing the edge over their competitors. In advertising, the regulator's unbending approach reflects growing consumer demands for accountability and transparency and increasing brand loyalty towards ethical brands. As the context in which environmental claims are being made is changing rapidly, corporates looking to transform to more sustainable methods will benefit from continuing advice and guidance from the ASA, so they understand what is expected of them and their adverts.