Conversations on the legal topics affecting businesses and individuals today.
Stuart Lester
In this episode should we crack down on airline ads for encouraging long distance or regular flights? Are businesses using green terms such as carbon neutral and net zero honestly and what do consumers understand those terms to mean? In the wake of COP26 we look at what the UK’s advertising watchdog, the Advertising Standards Authority is doing to play its part in battling the global climate crisis.
Hello and welcome to the Mishcon Academy Digital Sessions podcast. I am Stuart Lester, Managing Associate at = at Mishcon de Reya. I specialise in brand protection and advertising law and practice. Today we have first in a new series called Meet the Regulators and in this episode I am delighted to be joined by Miles Lockwood. Miles is Director of Complaints and Investigations at the Advertising Standards Authority. Miles has been at the ASA for over a decade and is leading the ASA’s climate change and the environment project.
Miles delighted to have you with us today. Firstly, do you mind telling us a little bit about the role of the ASA generally as the UK Advertising Regulator?
Miles Lockwood
Sure. The ASA well we like to describe ourselves as the one-stop-shop for UK advertising regulation. We cover most forms of advertising that people would recognise in fact the only thing that we don’t really cover which is contentious is political advertising in the context of elections but everything else falls under our remit. We have been regulating non-broadcast advertising for 60 years. In 2007 we took on responsibility for broadcast advertising in a co-regulatory partnership with Ofcom and then in 2010 we took on the regulation of website claims and claims on social media. So we cover all of that, both self-regulatory and co-regulatory but overall we knit together what we like to describe a form of collective regulation so we work with sectoral regulators like the Gambling Commission, the FCA and the Medicines and Regulatory Healthcare Authority as appropriate and we are here to ensure that as a legal, decent, honest and truthful and we do that by administering the advertising code.
Stuart Lester
Now as I mentioned in the introduction you are leading the ASA’s Environment and Climate Change Project. Do you mind telling us a bit about that and why it has become such an important issue for the ASA and do you think the ASA actually has a key role to play in responding to the climate change emergency?
Miles Lockwood
Absolutely. Well the first thing to say is that the ASA has got a really long track record at regulating environment claims. We’ve been doing it for decades long before in fact this was a priority for other stakeholders, other regulators so we’ve got we think a strong track record of holding to account businesses for misleading and socially irresponsible advertising in this space but look, we are not complacent. As everybody knows the evidence of a climate emergency, the evidence of environmental degradation is ever more apparent and the ASA decided last year that we needed to go further, we needed to check in to see whether or not our rules, our regulation needed to go into new territory to help to respond to that and you know, key to that is the bigger picture here because what we’ve got is Governments, UK Governments, other Governments around the world setting stringent targets for carbon reduction. The UK has set a target of 2050 net zero with the vast majority of that being achieved by 2035, 78% carbon reduction by 2035 and the Government advises the Climate Change Committee telling us that you know, consumer behaviour change is going to play an enormous part in achieving that, 30% reduction in carbon is the estimate that they think needs to be achieved in terms of the changes that we see from the public over the next 15 or so years so advertising although it has not been a really big issue or particularly in the crosshairs of critics up to this point, we think is beginning to become more of an issue. We can see that there are increasing numbers of critics who are arguing that advertising is a driver of unsustainable consumptions and is part of the problem so it is really important over the next few years to advertise, and by extension, advertising regulation plays its part to ensure that ads are seen to be not part of the problem but part of the solution in this challenge that we all face.
Stuart Lester
So as you said, advertising claims about the environment are not new of course but what we are seeing with our own clients there are a growing number of brands are referring to you know, their environmental credentials, their products and services. So given this rise in green advertising, are you dealing with more complaints as a result? I mean we hear a lot about greenwashing for example and I understand that the CMA, the Competitions and Markets Authority have estimated that about 40% of green claims made on line could potentially be misleading. Is that coming through in the complaints that you are investigating?
Miles Lockwood
It’s a good question. Well look, as I’ve said we’ve had a steady stream of complaints over the years, we’ve been regulating this issue for decades but it is absolutely the case that we are beginning to see an uptake now in people complaining about environmental claims. I would estimate that around 10% of our ongoing formal investigations at the ASA currently concern environmental claims and if you think of the vast universe of issues that we deal with, that’s quite significant and I think it is only going to grow in the months ahead. We’ve seen particular interest around COP26 of course, it’s natural, it’s been in the headlines but I think it is a longer term trend than that and we are not only beginning to see general members of the public complaining about issues that they spot but increasingly there are organised campaigning groups who are beginning to enter this space. There is a group called Adfree Cities, another one called Badvertising who have a very negative view of the role advertising plays who are beginning to put together quite sophisticated complaints about issues that they you know, they think is a priority so yeah, lots of awareness in the public. I think what is driving this is look, we have businesses who quite understandably want to tap into this you know, they are trying to do the right thing, that’s my honest belief, businesses want to burnish their green credentials, they want to promote products and services which are better for the environment but you’ve also got members of the public who are increasingly aware of this issue, concerned about this issue and wanting to call out what they think are misleading or socially irresponsible claims. As to the CMA research, they said you know 40% of green claims could be misleading. They didn’t say are misleading so I think perhaps we need to have a little bit of caution over that 40% claim but there are undoubted issues to address and the CMA and the ASA are totally aligned on that and we are in fact working together very closely on that as well.
Stuart Lester
And you spoke about it before but with this increase and obviously focus on these issues at the ASA at the moment, what steps have you taken so far to handle some of these challenges, you know, either through your approach to regulation, the rules but also thinking about education and awareness for advertisers.
Miles Lockwood
Yeah so the first step that we took in this project earlier this year was to have a look under the bonnet. We wanted to make sure that our rules, the advertising rules were fit for purpose and were sufficient and also in line with best practice around the world so we spent two or three months looking at the, the ad rules of other regulators in Europe and further afield, at legislation as well and at the practices that other ad regulators and other regulators in the space in the space are taking when they are looking at this sort of issue. The conclusion was that we got the rules in place, we don’t need more tools. We’ve got the tool box but there was a very clear sense that there is a need for more guidance in this space and critical to this, underpinning all of our regulation in years to come, the ASA and our sister body committee of advertising practice who write the rules have recognised that context here is really important and that context is underpinned by the Climate Change Committees call for there to be a need for consumer behaviour change and carbon reduction in key areas and that is going to be one of the guiding principles that will take us forward over the coming years. Misleading us is something which we do day in, day out. It is a bread and butter issue for us. We found that most of the issues that we deal with are very consistent with the kind of issues which are seen by our regulators in other countries but it was interesting that one area came through our review which was this issue of social responsibility. We’ve got rules in place already which can tackle things like excessive consumption, irresponsible behaviours around the environment but we noticed was that consumers haven’t really been complaining to us about it and we haven’t really had that much of a focus on it in the recent past but if we are going to achieve the behaviour changes which the Climate Change Committee and the Government say need to take place if the country is going to get to net zero by 2050 then we think in the years to come consumer behaviour change, social responsibility issues are going to become more of an issue in advertising so that is something to look out for if you are a business I think. Just a quick work on advice and training, yes we are doing a huge amount on advice and training as well, we want to help businesses get this right so we are currently developing an e-learning module which will be available next year. We’ve developed what we call a nudge strategy so when we have any conversations with any advertiser on any topic, it might be about a supermarket price comparison for instance, we are finding opportunities to direct those advertisers to a new section on our website which is dedicated to climate change and the environment and which includes information, resources, rulings, guidance, third party links to other helpful materials that will help businesses get their advertising right.
Stuart Lester
You spoke a bit there about the rules so there is essentially a rule book for advertising in the UK isn’t there, it’s called the Advertising Codes. There are two codes depending on the media type and within those codes are various sections which cover broader areas such as misleading advertising which you mentioned but there is also within the codes a sector specific rules, for example, on areas such as gambling and as you said there is already the tools in place, there is already rules specifically for environmental claims so I wonder if you could just tell us some of the key rules relating to environmental claims and perhaps bring that to life a little bit if you could talk, if you are allowed, about some of the ASA rulings and some of the common mistakes that advertisers have made in their advertising which have led to breaches.
Miles Lockwood
Yeah you are absolutely right about the rules, there are specific rules in the codes around environment but also general rules so if you are making an environmental claim you need to not only take account of the environmental code section but also misleading, general misleadingness and social responsibility rules which are in those codes. There is a lot to get through. I can only really give you two or three examples here in the time available but a really good one and actually one that we are seeing a lot of at the moment and which is concerning me is that there are lots of advertisers I think who are keen to burnish their… the good credentials of products and services which they are introducing which generally do have a benefit to the environment, say plant based burgers or oat milk but are making mistakes because one of the key rules in relation to environmental claims is that you need to make the basis of an environmental claim clear in an add, that’s really key here. A really good example of this that we uphold recently was the Oat and Almond milk drink Alpro who had a claim which said, ‘Good for the plant, good for you’. Now look, we all agree that generally oat milk is likely to be better for the planet but the ad didn’t make clear enough why it was good for you and good for the planet. Was it good for you because the almonds were sustainable or was it good for you and the planet because there was lower carbon footprints over the whole life cycle of the product. Was it good for you and good for the planet because it was recyclable material. The ad didn’t make that clear and just because your product or service is better for the environment and trying to do the right thing, that doesn’t absolve you from having to make sure that your ad claims actually meet the rules that we have in place. Another common pitfall is significant emissions so a great example here is a rather odd case, it was about a dog poo bag, the strange things that the ASA deal with, but a dog poo bag which actually made quite a big issue come to light and this was a claim through Ancol pet products where they claimed that their product was biodegradable and it was biodegradable but it was only biodegradable if you disposed of it in bushes, if you left it in the open environment and what we found was actually most responsible consumers are going to put their dog poo bag in a bin which is suitable for dog poo or they are going to put it into a general waste bin and in those conditions that bag was no more biodegradable than a plastic bag from a supermarket and so that was a very significant omission that they needed to make clear in the ad and they didn’t. One final example if we have time is about full life cycle. In most circumstances if you are making an environmental claim you need to make sure you capture the full lifecycle of the product or service unless you are clear that you are not doing that in your ad. A great example is BMW who claimed that their electric car has zero emissions. What they meant to say was it had zero emissions when driving because of course that car had many emissions when it was being produced, designed and would have further emissions in disposal so the full lifecycle of that electric car wasn’t explained adequately in the add so look you know, three examples there. It is very easy to get your ad claims wrong, this is a technical area so you need to take care.
Stuart Lester
And I think it would be remiss of me if I didn’t take the opportunity to ask the Director of Complaints and Investigations what his main message to advertisers or brands would be if they were considering an environmental focus in their advertising?
Miles Lockwood
I think just recognise the complexity of the issues here. This is one area in particular where it is easy to trip up because often there are scientific underpinnings, scientific claims, the need for technical evidence which need to underpin the kind of claims you want to make when you are talking about the environment and your environmental credentials so it is very easy to get that wrong, to omit parts of the full lifecycle of the product or service, some parts of which may be further up the manufacturing change and outside of your direct control for instance and you know, overall I would just say take advice, take all opportunities to ensure that your market teams, your legal teams have got the advice and training which is available from the ASA or from the Advertising Association who have recently put out new training on this subject and just make sure you can substantiate your claims as well. There is a lot to think of here but those would be my main messages I think.
Stuart Lester
I read that the ASA is supporting other organisations who are working on similar projects such as the Competition and Market Authority we spoke about previously. They have obviously got powers to enforce consumer protection laws relating to advertising. What are your thoughts on the CMA’s green claims code that it recently published and the recent guidance that’s come out that is supposed to help businesses understanding apply with their existing obligations under consumer law?
Miles Lockwood
Well we are hugely supportive of the CMA’s new green code and we would be because we helped them to develop it actually. The team at the CMA and us worked together on this for many months, they’ve obviously consulted widely and further than just the ASA but I think it is true to say that in large part their green claims guidance builds on the very extensive corpus guidance and rulings that we have developed over many years regulating in this space and it’s you know, there’s a huge amount to do in this space of environmental claims across advertising and further afield in the UK so we welcome the opportunity to work with the CMA and other partners over the coming months and years. Obviously one of the advantages of having the CMA is of course that they can reach further than the ASA, we just obviously deal with advertising, they can look at underlying business practices and that is obviously going to be interesting for us to talk to the CMA about in terms of how we divide up priority areas to look at in partnership. Our strength of course lies in our expertise in advertising and in the fact that we can look at social responsibility issues as well as misleading us issues but really important, final comment from me is the importance of consistency around this. The CMA’s guidance and our work on misleading us is all underpinned by the same law, the Consumer Protection Regulations so it is really important that we and the CMA work together closely on this to ensure consistency in our decision making in the coming months and we will continue to talk regularly with them to ensure that takes place.
Stuart Lester
And finally Miles, you spoke about the work to come looking to the future. What steps can we expect to see the ASA take in relation to environmental advertising regulation in 2022 and beyond?
Miles Lockwood
Well it has already started, there’s a huge amount of work coming up. We’ve got an ambitious programme. In the next few weeks we will be issuing guidance, it’s not a new guidance, its guidance which consolidates for the first time all of the ASA’s established work on misleading us and social responsibility into one place and signalling where we are going to be going further. We are going to be, as I have said, guided by the Climate Change Committee’s priority areas for consumer behaviour change and carbon reduction because looking at all of the issues we could deal with we’ve got to make choices and we think that if we focus on those areas which include things like waste, heating and transport, we can have the biggest impact in terms of ensuring that advertising is you know, staying within the rules so we’ve already made a start on transport, heating and energy. In Spring we will be moving on to waste which includes issues like biodegradability, plastic, recyclable claims and then on to meat, dairy and other non-animal based food sustainability claims next Autumn. And in each of those enquiries what we are going to be doing is taking a look at the kind of claims which are being made in those sectors and areas using human resources but also technology assisted monitoring tools. We will then be addressing and assessing what we find and then we will take action on issue so that might be a combination of investigation, guidance, research, partnership working with others to ensure that we can bring any problematic claims to the attention of businesses and give certainty and guidance to the relevant sectors. And then also this Autumn we are already in the process of commissioning consumer research into carbon neutral and net zero claims in ads which we think is a priority area and also the claims that car companies make for hybrid and electric cars as well which has been identified in our review as something where consumers have particular concerns about and obviously with you know, the switch to electric and hybrid by 2030, we think that’s a priority area for us and then finally you know, the day-to-day work investigating claims will continue. We will continue to provide advice and training, we will continue to support the industry to help them get their claims right as well as calling them out when they get it wrong.
Stuart Lester
Well I am said to say that our time is up already and we will have to wrap things up there. I’d like to say a big thank you to our guest, Miles Lockwood for joining me for this Meet the Regulators podcast, I hope you’ve enjoyed it. Miles we wish you all the best with the ongoing project. I am Stuart Lester and do look out for the next episode in the series.
The Mishcon Academy Digital Sessions are a series of online events, videos and podcasts all available at Mishcon.com. If you have any questions you’d like answered or suggestions of what you’d like us to cover, do let us know at digitalsessions@mishcon.com. Until next time, take care.
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