In recent months there have been a large number of complaints relating to the use of various green claims in advertising materials. Hannah Willson has studied the ASA adjudications and gathered together the recent ASA guidance as to how green claims can be successfully touted.
Who: Advertising Standards Authority and various advertisers
Law stated as at: 1 August 2011
"Greenwashing: a deceptive use of green PR or green marketing in order to promote a misleading perception that a company's policies or products are environmentally friendly" (Wikipedia)
It has become a growing trend to advertise the eco-friendly credentials of a company and its products, however there is a fine line between 'greenwashing' and robust and accurate advertising that all marketers and companies should be aware of before they venture down the route of making 'green claims'.
There have been a slew of recent cases brought before the Advertising Standards Agency ("ASA") in relation to green claims made in advertising materials and in this article we summarise just a few to demonstrate some of the pitfalls:
1. Green Sun Limited – all complaints upheld
Green Sun claimed, in a magazine advertisement for solar panels, that "A typical domestic SOLAR P.V. system from Green Sun could… ADD UP TO 10% TO THE VALUE OF YOUR PROPRETY" and made reference to a "predicted 14-25% increase in energy costs by 2020". The complainant challenged whether the claims were misleading and unsubstantiated and in particular whether the claims were misleading due to a lack of information regarding any installation costs of the solar panels. Notable facts relating to this case were:
- Green Sun had amended the claim relating to the increase in value to your property to a more general claim before the ASA complaint, due to the removal of information from the Energy Saving Trusts website on which it had based its statement. Although the ASA acknowledged this amendment, it couldn’t find evidence to support either the initial specific or the later general claim.
- The predicted increase to energy costs claim had been based on press releases and articles relating to an Interim Management Statement from an energy supplier and from Ofgem, however this 'evidence' was printed after the advert first appeared and consequently they could not be formally considered as substantiation. The ASA however did still consider the evidence provided and concluded that they were not deemed suitable to support Green Sun's claim.
- The final complaint relating to the lack of information about installation costs was explained by Green Sun as not being possible due to many factors being involved in solar panel installation and that an 'average installation price' doesn't exist. The ASA acknowledged this, however ruled that in this context Green Sun should have clarified the probably range of costs involved in installing the system so that consumers would be aware or the potential future profit or savings relative to the cost of installation.
All three complaints were upheld on the grounds that they breached CAP Code rules 3.1 and 3.3 (Misleading Advertising); 3.7 (Substantiation) and 3.11 (Exaggeration).
2. Spark Energy Limited – all complaints upheld
Spark Energy's advertising materials included claims that: (a) "we guarantee to match or better the 'Big Six' Standard tariffs"; and (b) "Over the next few years, we will be obtaining secure renewable fuel sources with a view to providing 100% of our customers electricity requirements via renewable sources". It was argued these claims were misleading and, in relation to the second claim, not adequately qualified. The relevant points to note in this case were:
- The price comparison claim was qualified with a footnote that read: "Average of the 'Big Six' standard tariffs across the UK… Plus or minus 5% is considered 'Matching' the 'Big Six' due to regular changes up or down in standard tariffs". Due to the possibility of the 'average' tariff being distorted by a high tariff by one provider, the ASA considered that the consumer would be unlikely to consider this 'matching' an equivalent competitor's product and thus the claim was considered misleading (CAP Code rules 3.1 and 3.3) and held to have breached CAP Code rules 3.35 (Comparisons with identifiable competitors) and 3.39 (Price comparisons).
- In relation to the second claim, Spark Energy referred to an aim on their part to comply with the statement. The ASA however, referred to the DEFRA 'Green Claims Guidance' from February this year (a copy can be found here) which states that where a future claim is made that this should 'be supported by publicly available plans or a strategy that provides details about the intended actions achieve to the target'. Spark Energy only had secured renewable resources for a few months and plans beyond that extended up to a year and therefore the ASA considered the claim unqualified and likely to mislead, breaching CAP Code rules 3.1 and 3.3 (Misleading Advertising), 3.7 (Substantiation) and 11.1 (Environmental claims).
3. Global Gateway A/S – all complaints upheld
Global Gateway was advertising the VIABTOR, a product that was described on Global Gateway's website as: "VIABTOR FOR GLOBAL ECOLOGY AND PRIVATE ECONOMY… DRIVE CHEAPER AND MORE ECO FRIENDLY…By using the VIABTOR you can contribute to solving the huge problems the world is facing today: climate changes, pollution and CO2 emissions … Comprehensive tests show that from the moment the VIABTOR is fitted the car becomes more fuel efficient and produces less pollution.. GET A VIABTOR FOR YOUR CAR AND SAVE THE ENVIRONMENT AND YOUR FUEL EXPENSES WITH UP TO 10% £44,90".
The complaints against this advertisement were based on the substantiation (or lack of) for the fuel and money savings claims and it was argued that the environmental claims were misleading. Global Gateway provided evidence to substantiate the fuel and money savings claims, but the tests they had carried out were based on a self-assessment model and had not been conducted by a reputable independent laboratory in test conditions. Therefore the results of such tests were questionable in the ASA's opinion and the ASA ruled that they constituted inadequate substantiation and therefore CAP Code rules 3.1 and 3.3 (Misleading Advertising) and 3.7 (Substantiation) were breached. No evidence was provided by Global Gateway in support of the second claim so it was also held to have breached CAP Code rules 3.1 and 3.3 (Misleading Advertising), 3.7 (Substantiation), 11.1, 11.3 and 11.4 (Environmental Claims).
4. Bodum – 2 complaints upheld
Bodum advertised its French press coffee maker by showing a pile of empty coffee cartridges with text above stating "make taste, not waste" and three Bodum 'French press' coffee pots with text across them stating "get green". Smaller text also stated "The BODUM simple brewing method does not contaminate and pollute trash. It is preferred by baristas world-wide as it brings out the most authentic qualities of the coffee's flavour and it conserves its aromas and essential oils. The greenest way to brew coffee according to Bon Appetit magazine, Slate magazine and planetgreen.com".
The green claims were challenged on the grounds that they lacked substantiation, that the 'get green' implied the product had no detrimental environmental effect and that the comparison to cartridges was misleading as it related to a different type of coffee maker and was denigratory to the Nespresso brand (Nespresso was the complainant). The ASA upheld the complaints relating to the substantiation of "the greenest way to brew coffee" claim and the misleading implication of the "get green" claim. Bodum admitted that reliance on magazine and website editorial might not be sufficient to substantiate a superlative green claim and agreed not to repeat the claim – this was welcomed by the ASA who went on to say that a study of the full life cycle of the product should be considered for this type of claim and that editorial comments alone were insufficient evidence.
Despite Bodum's response that the "get green" claim should be considered in light of the whole ad, the ASA did not consider that Bodum had submitted robust enough evidence to substantiate that the 'French press' method was less environmentally damaging than an espresso capsule machine. These two claims were therefore held to have breached CAP Code rules 3.1 (substantiation); 7.1 (truthfulness); 18.1 and 18.3 (Comparison with identified competitors and/or their products) and 49.2 (Environmental claims). Bodum however didn't fail on all counts and the transparency of the comparison to the other product was considered not to mislead the consumer as there was no confusion as to which products were being compared. Furthermore the suggestion that a competitor's product may cause waste was not considered to be denigratory of the competitor's brand in itself.
Why this matters:
These recent claims show the ASA is taking green claims seriously and in many situations the complaints have been upheld due to a lack of documentary evidence to substantiate the claims made. Another important feature of these adjudications is that they not only fall foul of the specific rules relating to environmental claims in the CAP Code but also in relation to the rules regarding misleading advertising (rule 3) and comparative advertising (rule 18).
Along with becoming familiar with rule 11 of the CAP Code, the ASA has advised advertisers thinking of going green to consider the following points before embarking on any advertising which utilises 'green claims':
- Get your facts right – don’t exaggerate the environmental benefits of your products. Advertising claims should be backed up with documentary evidence (before the ad appears in public);
- This is an area where scientific knowledge is developing all the time. Don’t present claims as being universally accepted if the science is inconclusive;
- Don’t use pseudo-science, or terms that will not be generally understood by the readers of your ad;
- Avoid sweeping or absolute claims such as "environmentally friendly" or "wholly biodegradable". It is unlikely that you will be able to prove your product has no environmental impact; and
- Saying something is "locally" produced should mean exactly that – shipping goods in from abroad or the other end of the country doesn't make them "locally sourced".
Advertisers beware – superlative green claims will need robust substantiation, must not be misleading and must be accurate where any comparison to other products is concerned. Failure to follow these rules may result, like the ads described above, in an upheld adjudication by the ASA and your ad not being able to reappear in the same format again.