Last week, the Advertising Standards Authority upheld three complaints about environmental claims in advertisements published by three different airlines, finding all three misleading. The ASA identified the ads as part of its ongoing enforcement work on climate change and the environment – a key focus area for the ASA at present.
As part of this wider enforcement work, the ASA has recently upheld a number of complaints in relation to green claims across different industries, not because the claims were untrue, but because they gave a misleading impression of polluting businesses’ overall environmental impact. These rulings have caused significant concern among advertisers, whom the ASA expected to acknowledge their businesses’ overall environmental impact in any advertising promoting their green initiatives.
In contrast, last week’s complaints were straightforward cases of claims which the advertisers could not substantiate, and which were therefore misleading.
However, the ASA may be concerned that two of the three advertisers involved in last week’s rulings did not even attempt to substantiate their claims, with one of them failing to engage with the ASA altogether. It is unusual for a major company to ignore an ASA complaint, and these responses may suggest that some major companies are preferring to make misleading green claims, and to take the risk of an upheld ASA complaint, than to get the claims right. If so, this may contribute to the view held by some that the ASA is a toothless regulator.
Advertisers should take care, though. The CMA is actively investigating in this area, and may have greatly increased powers soon if the Digital Markets, Competition and Consumers Bill becomes law. The time for advertisers to make their green claims compliant is now, not when they face a possible fine of up to 10% of worldwide turnover.
- Advertisers should always have evidence in hand to substantiate green claims before ads are published, and should be ready to produce it quickly if asked to do so.
- Particularly in high profile areas of concern such as greenwashing, businesses cannot assume that they will be able to simply remove misleading claims to obtain an informal resolution from the ASA.
- Advertisers must make the basis of the claim clear in the ad. That the medium provides insufficient space to do so is not an excuse.
Air France-KLM claimed "Air France is committed to protecting the environment: travel better and sustainably". The airline did not respond to the ASA, which found that consumers would understand the claim to mean that Air France offered a sustainable and environmentally-friendly way to travel by air.
The ASA commented that it would expect a high level of evidence to show how Air France were protecting the environment. However, the ASA found that there were no initiatives or commercially viable technologies in operation at Air France, or even within the wider aviation industry, which would substantiate this claim.
On the basis that the airline had not provided any evidence for its absolute environmental claim that its flights were indeed sustainable, the ASA decided that Air France had given a misleading impression of the impact that travelling with it would have on the environment, and thus the complaint was upheld.
Lufthansa’s ad claimed "Fly more sustainably". The airline did engage with the ASA, arguing that the claim referred to its new “green fares” option. Lufthansa said that its green fares would reduce 20% of flight-related emissions by using sustainable fuels, and that it would offset the remaining 80% of emissions by contributing to high-quality climate projects.
However, the ASA found that the ad “did not clarify how the claim worked in practice” as it provided no information about how the green fares would make flying more sustainable. The ASA confirmed that the basis of the claim was material information required by consumers to make an informed decision, and therefore should be present in the ad (and that it was not sufficient to explain the basis for the claim to the ASA afterwards).
Lufthansa also said that there was insufficient space in the ad as it appeared to consumers to provide this additional detail, and that consumers could follow a link to get further information, but the ASA did not accept this limitation and upheld the complaint.
Finally, Etihad claimed "Total Peace Of Mind With Etihad Airways. Environmental Advocacy". The ASA decided that consumers would understand the claim to mean that the airline actively worked to protect the environment and, consequently, that consumers could use its services with “Total Peace Of Mind” with regard to environmental impact. However, the ASA found no evidence that Etihad had engaged in any form of environmental advocacy, nor that it had made any effort to proactively protect the environment in a way that would satisfy the claims. Etihad agreed to remove all references to “Environmental Advocacy” from its ads but, on the basis that the claims were likely to mislead consumers regarding the airline’s environmental impact, the complaint was also upheld.
A continuing pattern at the ASA
These decisions are just the latest in a slew of ASA rulings about misleading environmental claims, and demonstrate that claims of this nature continue to be ‘front and centre’ for the ASA as part of its climate change enforcement project.
Environmental claims are, therefore, under particular scrutiny in the United Kingdom at present, and it is clear that they must be treated seriously and considered very carefully by advertisers, who should expect to be challenged to produce evidence which forms the basis for any such claims.
The message from the ASA is clear: green claims must not be used to give consumers a false impression of a company’s impact on the environment. In the case of Air France and Etihad, neither airline attempted to substantiate their implied claims, and thus the complaints made against their ads were upheld. Lufthansa, meanwhile, did not, in the ASA’s view, produce sufficient evidence to meet the ‘minimum threshold’ of making the basis for their claim clear – also resulting in their ad being found to be misleading.
Importantly, green claims are also a key area for the Competition and Markets Authority, who are actively investigating in this area. The Digital Markets, Competition and Consumers Bill (“DMCC") was published in April 2023, and, if enacted, will give the CMA greatly increased powers with which to take enforcement action against businesses. Most notably, under the DMCC the CMA will be able to impose fines of up to 10% of worldwide turnover, and direct businesses to compensate consumers directly. This will make misleading advertising a business critical issue going forward.
Article co-authored by Charlotte Sanderson, Trainee Solicitor at CMS.