New guidance issued on environment-related advertising issues

Out-Law News | 16 Dec 2021 | 2:15 pm | 2 min. read

Authorities in the UK have issued new guidance on misleading environmental claims and social responsibility in marketing and advertising campaigns.

The guidance (15-page / 0.4MB PDF) was drawn up by the Committee of Advertising Practice (CAP) and the Broadcast Committee of Advertising Practice (BCAP), which are responsible for writing and updating and rules on advertising in the UK.

Their sister organisation, the Advertising Standards Authority, enforces the rules.  This latest guidance sits in parallel to separate guidance created by the Competition and Markets Authority (CMA).

Dennis Gill_November 2019

Gill Dennis

Senior Practice Development Lawyer

In light of this guidance, it will be difficult for businesses to argue that they were unaware of the green advertising regulations should enforcement action be taken against them.

Gill Dennis, advertising law expert at Pinsent Masons, said the primary purpose of the guidance was to “help businesses understand how existing rules around environment-related advertising will be interpreted and applied”.

“The timing of this guidance is no coincidence. We expect to see enforcement of the rules in earnest by the CMA and ASA right from the start of 2022,” she added.

According to the guidance, marketers “should not assume a high level of understanding” among consumers about environmental claims and must include additional information to make the meaning of claims clear.

An ad must base environmental claims on the full life cycle of the advertised product - from manufacture to disposal - unless the marketing communication states otherwise, and make clear if any advertised environmental benefit from a product will only result from specific consumer action or behaviour change.

Firms can, however, simplify terms – such as referring to molten carbonate fuel cells (MCFCs) as ‘fuel cells’ – “provided it aids a consumer’s understanding of the product or service”.

The guidance said advertisers should also ensure they have “robust documentary evidence to prove all claims” before they submit marketing communications for publication, warning that the ASA is likely to rule that even objective claims are misleading “in the absence of adequate substantiation”.

Firms should also not suggest that their claims are universally accepted if a significant division of informed or scientific opinion exists.

The guidance urged firms to be cautious about overstating their environmental credentials, citing one ad which claimed a business used its waste CO2 “to grow flowers” and its waste sulphur to make “super-strong concrete”.

The ad breached the code because the advertiser could not show that “most or all of the CO2 and sulphur it produced was recycled in that way”.

CAP and BCAP also warned against “trivialising” consumer behaviour that would likely result in harmful pollution or excessive waste.

Under both organisations’ codes, advertising and marketing communications “must be prepared with a sense of responsibility to consumers and to society”.

The guidance said ads that encourage consumers to disregard the harmful environmental impact of their actions, or condone the non-recycling of recyclable packaging and littering, were likely to be in breach of the codes.

Dennis said: “In light of this guidance, it will be difficult for businesses to argue that they were unaware of the green advertising regulations should enforcement action be taken against them.”

“Businesses should read this latest guidance and take advice if they are in any doubt about the legality of a planned advertising campaign,” she added.

Huw Cookson, advertising and litigation expert at Pinsent Masons, said the “comprehensive” guidance meant businesses now “have detailed resources at their disposal to try and ensure they get it right”.

“Expect to see greater enforcement action from both the CMA and ASA in the coming months as they seek to cement their approach to green claims,” he added.