Who: The Advertising Standards Authority (ASA), Committee of Advertising Practice (CAP), Broadcast Committee of Advertising Practice (BCAP) and the European Commission.
Where: England and Wales, EU
When: 9 December 2021 and 17 December 2021
Law stated as at: 10 January 2022
Adding to the every-growing library of guidance issued to tackle greenwashing, CAP/BCAP and the Commission have now published further advice for companies to take into account when reviewing their environmental claims:
On 9 December 2021, CAP and BCAP published guidance to assist organisations in interpreting their regulations on environmental advertising. Similar to the Competition and Markets Authority’s (CMA) guidance (as previously reported), the guidance sets out the environment-related principles of the ASA’s regulation system, how the principles should be interpreted and examples of approaches that are likely to be problematic. The guidance includes the following explanations:
· Basis of claims. The basis of environmental claims must be clear. Marketers should not assume consumers hold a high level of understanding of their environmental claims and must include any additional information required to clarify their claims.
· Clarity of terms. The meaning of all terms must be clear to consumers. Marketers should not assume that their consumers have a level of knowledge greater than is reasonable or likely. Simplifying a term may be acceptable, so long as it aids a consumer’s understanding.
· Adverse effects. Products that do not damage the environment should not be marketed so as to imply that the product has been changed to make it safe. For example, if a product is environmentally damaging (four example, a petrol four-wheel drive), advertisers should not imply that they have stopped the adverse impact through improvements (for example, the car may be “greener” if emissions are lowered but not “green”).
· Social responsibility. Marketing must be prepared with a sense of responsibility to the audience and society. Examples of issues that could be considered by the ASA in the future under this rule include claims that encourage consumers to disregard the harmful environmental impact of their actions or claims that trivialise behaviour likely to result in harmful pollution or excessive waste.
The Commission also updated its guidance in December 2021 on the application of the Unfair Commercial Practices Directive, a set of regulations protecting EU consumers against unfair commercial practices. Specifically, the guidance now details how the existing regulations are to be applied to environmental claims. Many of the directive’s principles are reflected in the UK’s CMA and ASA guidance, however, notably, the Commission guidance sets out the following developments:
· Greenwashing claims could infringe on the general prohibition of unfair commercial practices, which is a criminal offence in the UK.
· The use of vague and general statements of environmental benefits (such as “environmentally-friendly”) without appropriate substantiation is likely to be misleading. This is also the case with terms such as “conscious” and “responsible”, even where they have been qualified.
· Claims relating to products made by highly polluting industries should be accurate in a sense of being relative. For example, claims should state such products are “less harmful for the environment” rather than “environmentally friendly”. These industries may also be required by authorities to make clear in their claims that a product has an overall negative impact on the environment.
· Where a code of conduct, labelling scheme, certificate, symbol or green logo is used in a claim, further information should be provided in the form of specifications or explanations. Such information should appear in the same field of vision as the claim.
Why this matters:
The above guidance confirms the ASA and the Commission are continuing on their path to tackle greenwashing in advertising. While not legally binding, it is highly likely the guidance will be used by regulators in their investigations of misleading environmental claims and companies should, therefore, ensure they are well-versed and comply with its content. Both the ASA and the Commission have indicated ongoing plans in this area. For example, the ASA will conducted enquiries into waste and food sustainability claims and the EC’s New Consumer Agenda also foresees further proposals to tackle greenwashing. Given the likelihood of further guidance on environmental claims, companies should ensure they keep this area under review.