Transparency in “green” claims: updated ASA Guidance on misleading environmental claims and social responsibility

The Advertising Standards Authority (“ASA”) has published an updated version of its guidance on misleading environmental claims and social responsibility. This update follows a flurry of recent steps the ASA and its partner regulator, the Competition and Markets Authority (“CMA”), have taken in their ongoing efforts to curtail misleading “green” claims.

As it outlined in its 2022 Annual Report, the ASA will continue to tackle misleading and socially irresponsible “green” claims as a priority. You can read our summary article of the key points from the 2022 Annual Report, here. Most recently, this has included a series of rulings across several sectors (energy and utilities, travel, and FMCG brands), indicating the ASA’s strict application of the CAP and BCAP Codes (the “Advertising Codes”) where there is evidence of misleading or socially irresponsible advertising concerning the environment.

Striking the balance between “Greenwashing” and “Greenhushing”

Alongside the updated guidance, the ASA published a thought-provoking opinion piece in which it acknowledges the “binary choice” advertisers think they face when it comes to making “green” claims: choosing between “greenwashing” and “greenhushing”. “Greenhushing” being the act of advertisers not discussing their environmental credentials or benefits, for fear of backlash from regulators, competitors or consumers.

The opinion piece goes on to note that making environmental claims should not be a choice; rather, it is about advertisers communicating accurately and with transparency. The ASA reiterates that claims should always be appropriately qualified with information about the product or service that is being advertised, and also the advertiser’s business, as a whole. By way of example, a high carbon-emitting business should not make unqualified, disproportionate claims about its green credentials, giving consumers the impression that the green creds are a prominent part of its business.

Environmental claims

The ASA guidance builds on the themes addressed in the opinion piece and provides further examples of approaches that are likely to be unacceptable in individual marketing communications. In particular, the updated guidance reviews the existing principles of the Advertising Codes in relation to environmental claims. Key features of the updated guidance are summarised, below.

Basis of claims

Environmental claims are likely to be misleading if the basis of the claim is not clear, and so substantiation should be included to assist consumer understanding. Marketers should consider consumers’ likely interpretation of a claim and how knowledgeable the audience is likely to be, without assuming a high level of understanding.

Claims about initiatives designed to reduce environmental impact

Recent ASA rulings have found that ads which made positive environmental claims about specific aspects of a business, where the business in question remained responsible for a significant amount of harmful emissions, were in breach of the Advertising Codes. Such claims were found to be misleading as they exaggerating the business’s overall environmental credentials (i.e. “greenwashing”). 

The updated guidance highlights the following factors that make advertising claims more or less likely to comply with the Advertising Codes:

• Environmental claims which relate narrowly to specific products or services should make clear which aspects they refer to, in order to ensure that they are not understood as being representative of the entire business.
• Where businesses are responsible for a significant amount of environmental harm (for example, high amounts of harmful emissions), ads which reference specific environmental benefits or initiatives are more likely to mislead if they do not include balancing information on the business’s significant ongoing contribution to environmental harm.
• Ads which refer to a business’s lower-carbon activities without including information about its overall harmful environmental impact may provide a misleading impression of the proportion of the business’s overall activities that are lower in carbon.
• Imagery of the natural world may, depending on the context, contribute to the impression that the advertised business is making a significant contribution towards reducing greenhouse gas emissions and can be considered misleading in the absence of balancing information.
• Absolute environmental claims (such as “sustainable” or “environmentally friendly”) must be supported by a high level of substantiation.
• Ads which present a business’s negative environmental impact as being in the past are likely to mislead if the company is still having a significant negative impact.
• Ads which focus on specific initiatives as a way of achieving net zero should clearly contextualise those claims with information about the role that the initiative would play in a net zero plan, and how and when net zero emissions will be achieved. For these types of ads, the timeframe to achieve that goal is likely to be considered material information and should be stated in the ad.

Clarity

The guidance advises that marketers should be careful not to assume consumers have a level of knowledge greater than is reasonable or likely. Simplifying terms so as to aid consumer understanding of a product or service may be acceptable.

The ASA has also provided more specific guidance on “carbon neutral”, “net zero”, and similar claims as this, it states, is an area where consumers have low levels of understanding and there is a lack of consensus on their meaning. The Advertising Codes advise advertisers to account for the following:

• Avoid using unqualified “carbon neutral”, “net zero” or similar claims. Information explaining the basis for these claims should be included as it increases consumers’ understanding.
• Marketers should ensure that they include accurate information about whether (and the degree to which) they are actively reducing carbon emissions or are basing claims on offsetting.
• Claims based on future goals relating to reaching net zero or achieving carbon neutrality should be based on a verifiable strategy to deliver them.
• Where claims are based on offsetting, they should comply with the usual standards of evidence for objective claims set out in the guidance, and marketers should provide information about the offsetting scheme they are using.
• Necessary qualifying information for a claim should be sufficiently close to the main aspects of the claim for consumers to be able to see it easily and take account of it before they make any decision.

Substantiation

While not new, the guidance reiterates that marketers must ensure that they hold robust documentary evidence to prove all claims, whether direct or implied, that are capable of objective substantiation. This should be done before marketing materials are submitted for publication.

Further, ads are likely to be found misleading if they lack adequate substantiation where a claim is objective and capable of being substantiated.

• Absolute claims like “green” or “environmentally friendly” should be supported by a high level of substantiation.
• Relative claims like “greener” or “friendlier” will require verifiable evidence that proves an environmental benefit over comparable products.

Social responsibility

The guidance also highlights an increased urgency for businesses and other stakeholders to play their part in tackling climate change and other environmental harms. The ASA provides some examples of grounds of complaints which may be in breach of the Advertising Codes, specifically, that marketing communications need to be prepared with a sense of responsibility to consumers and to society. Examples of adverts which may be in breach include those which:

• trivialise consumer behaviour likely to result in harmful pollution or excessive waste;
• encourage or condone non-recycling of recyclable packaging;
• encourage or condone consumers to disregard the harmful environmental impact of their actions; and
• encourage or condone littering.

Being the UK’s advertising regulator, the ASA reiterates that it will only be considering the creative content of ads, as opposed to the products they are promoting, and any future consideration of ads will be underpinned by this distinction.

If you would like to discuss any of the topics touched on in this article, or advertising regulation more generally, please do not hesitate to contact one of our specialists.

Co-authored by Beth Wilson, Trainee Solicitor