Evidence and context – the key to green advertising claims in the UK in 2024

UK agencies were busy in the last weeks of 2023. The Advertising Standards Agency (ASA) called out a number of adverts in the aviation and energy sectors which it found amounted to greenwashing and issuing guidance on “green disposal claims”. And the Competition and Markets Authority (CMA) opened an investigation into green claims by a consumer goods company.

Regulator activity on green claims, in particular in the UK, is likely to gather pace in 2024. Any business marketing their environmental/net zero creds should make sure claims stack up and can be verified with robust evidence, as well as ensuring that they present the whole story about the business’ impact on the environment/climate – not just a snapshot of the good bits! Those in  industries that have a higher environmental/carbon footprint should take particular care when making green claims to set these in the context of the overall business.

Spotlight on airlines

In December 2023, the ASA issued rulings against adverts published by three airlines Air France, Deutsche Lufthansa and Etihad adding to two previous decisions against airlines. All three adverts referenced the airlines’ commitment to sustainability or the environment. In its findings, the ASA noted that air travel produces high levels of CO2 and non-CO2 emissions which significantly contribute to climate change. It held that absolute environmental claims – those which make an unqualified statement about efforts to promote sustainability – must be supported by a “high level of substantiation”. In the case of both Air France and Etihad, the ASA found no initiatives or commercially viable technologies in operation within the aviation industry to adequately substantiate the absolute claims made.

The ASA also objected to Deutsche Lufthansa’s advert that consumers could “fly more sustainably”. Deutsche Lufthansa argued that this referred to its “Green Fares” which allowed customers to pay more to reduce 20% of flight-related CO2 emissions by using sustainable aviation fuels and off-setting the remaining 80%. The technical limits of the advert meant that only limited information could be provided, but the airline argued that the average consumer would understand this and could click a link for more information. The ASA did not accept these arguments, holding that consumers would understand the claim to mean that Lufthansa offered a way to travel by air that had a lower environmental impact than alternative airlines and that the advert omitted significant information with no explanation of how “flying more sustainably” would work in practice. While consumers had the option to decrease the environmental impact of their flight, the ad did not make clear that the Green Fares option was the basis for the claim. Limited advertising space was no justification for the omission of information material to a consumer’s decision.

Beyond public enforcement, the climate charity Possible has launched a formal complaint via the OECD against British Airways in relation to its claims to be “driving urgent action towards net zero emissions” and Virgin Atlantic’s “Mission to Net Zero”. Unless and until technologies for cleaner flights are developed and implemented, Possible considers that any claim that flying can be sustainable can mislead consumers. The OECD could call on BA and Virgin Atlantic to withdraw their adverts if they are, ultimately, found to be misleading. 

A broad campaign against green claims

But risk is not limited to the airline sector. The ASA is undertaking a wider piece of enforcement work on climate change and the environment and it is using an Active Ad Monitoring system deploying AI to proactively search online ads and identify those that break the rules. 

As part of its work, it made two other rulings on green claims in December. Charles Tyrwhitt Shirts’ failure to make clear the basis of its claim to being a “Carbon Neutral business” led to an ASA ruling against it. And Equinor’s claim that wind farms, oil and gas and carbon capture play a balanced role in its energy mix was held to be misleading when most of the company’s revenues still come from oil and gas. The ASA said that ads were “likely to mislead if they exaggerated the contribution that lower-carbon initiatives played… as part of the overall balance of the company’s activities…”.  

While the ASA’s powers are relatively limited and don’t allow them to fine companies who break the rules, the UK CMA is set to get broad consumer protection enforcement in autumn this year (see our blog post here). This will include powers to fine companies up to 10% of their global turnover for conduct that can mislead customers including by omitting relevant information. Green claims in fashion and consumer goods markets already feature on the CMA’s docket and should be considered a high risk area when the CMA gets its powers later this year. 

Using the guidance

Whilst the enforcement climate around green claims is high, there is relatively detailed guidance for businesses in the form of the CMA Green Claims Code (see our blog post here), the ASA’s Advertising Guidance: The environment: misleading claims and social responsibility advertising which includes a recently updated section on green disposal claims and the ASA’s publication on Greenspeaking with Confidence (see our blog post here).

The recent update on green disposal claims gives businesses guidance on how to communicate with consumers about the disposal of products. Claims must specify information about which parts of a product are recyclable, the disposal process (if it is likely to differ from a consumer’s expectations), the length of time it takes a product to biodegrade or compost and harmful by-products. The ASA has indicated that businesses have a grace period to review disposal claims until 1 April 2024 before investigations into disposal claims will commence.

Key points from the various guidance documents include:

• The need to be able to substantiate and evidence your environmental claims, particularly in relation to absolute environmental claims such as "sustainable" or "environmentally friendly" which need a high level of substantiation.
• The need to give a balanced account of where your business is on its decarbonisation and sustainability journey, especially if you are in a high-carbon emitting sector. The significance of a business' lower carbon activities and adverts which focus on specific net zero initiatives should explain where the initiatives fit in the business' wider net zero plan.
• The less prominent any qualifying information is, and the further away it is from any main claim being made, the more likely it is the claim will mislead consumers. The information does not have to dominate ads, but it must not be hidden away.
• Always put yourselves in the shoes of the consumer and assume a low level of knowledge when marketing green claims.
• Go back to basics: claims should be truthful, accurate, clear and unambiguous. 

With enforcement risk high and the consequences of getting it wrong set to dramatically increase, not just in the UK, closely monitoring green claims in 2024 is a new year’s resolution to keep!