An increasing number of consumers are supporting businesses that claim to provide products or services that are less damaging to the environment (eg ‘eco-friendly’, ‘green’, ‘greener’ or ‘cleaner’). Due to the potential for such claims to increase brand loyalty and influence purchasing decisions, regulatory authorities such as the Advertising Standards Authority (ASA) and Competition and Markets Authority (CMA) are concerned about businesses trying to attract customers by making inaccurate or misleading claims. The CMA recently investigated this issue and found that up to 40% of online green claims may be misleading.
To protect consumers from being misled, the ASA and Committee of Advertising Practice (CAP) set out certain rules in their advertising codes which must be followed when making environmental claims. The CMA has also recently released a ‘Green Claims Code’, to help businesses understand how to make claims about their green credentials. The CMA intends to carry out a full review of misleading green claims (whether made in person or online) from the start of 2022.
Any business that doesn’t comply with the laws around making environmental claims risks facing legal action from the CMA, their advertising being withdrawn by the ASA, financial penalties, and/or reputational damage.
Making environmental claims: The CAP Code
What are environmental claims?
Environmental claims are claims which suggest a product, brand, business, good or service has a positive impact on the environment, or is less damaging to the environment than other similar goods or services (or a previous version of the same good or service). They may be express or implied, and can appear anywhere on marketing materials, branding, or other information provided to consumers.
What is the CAP Code?
The CAP Code is the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing. It sets out rules for non-broadcast advertisements (eg online, email, catalogue or newspaper advertisements), sales promotions and direct marketing communications. Note that this blog does not cover guidelines for advertising through the radio or television; if you intend to do so you should refer to section 9 of the BCAP Code.
Under the CAP Code, non-broadcast advertising must not mislead people about products or services, and must have a sense of social responsibility. The CAP Code also provides specific rules around making environmental claims. These include (but are not limited to):
1. Ensure that claims are accurate and not misleading or exaggerated
Under the CAP Code you must ensure that any claims about a product’s environmental credentials, or its impact on the climate, are accurate and not misleading or exaggerated. You will need evidence to justify claims about your products, and you should gather this evidence before you make a claim in your advertising.
2. Beware of absolute claims like ‘green’ or ‘environmentally friendly’
The ASA advises that absolute claims like ‘green’ or ‘environmentally friendly’ can be extremely difficult to prove and need a high level of substantiation. This is because you must provide convincing evidence that your product will cause no environmental damage during its full life cycle (from manufacture to disposal).
The ASA recommends that you instead use claims like ‘cleaner’ and ‘greener’ as these are easier to prove (although you still need to make clear exactly what you are comparing your product to). For example, the ASA says that a newer model of a four wheel drive vehicle could be ‘greener’ compared to a past model if its emissions have been lowered, but it is unlikely to be ‘green’.
Some past examples of misleading environmental claims have included:
- a rechargeable lawn mower advertisement that stated ‘Mow your lawn the environmentally friendly way’. This was misleading because the advertiser was unable to show that the full life cycle of the product did not cause any environmental damage; and
- a company that offered ‘100% renewable energy’ which made an absolute claim that the product could be used ‘without harming your world’. This claim was found to be exaggerated and unable to be proven.
3. Don’t leave out important information
You must not leave out or hide information that the customer needs to know to make an informed decision (or present it in an unclear or ambiguous way).
4. Use terminology that customers understand
You shouldn’t use terminology that a customer is unlikely to understand, and the basis and meaning of your environmental claim must be clear. For example, marketers are urged to take care when using claims like ‘carbon offsetting’ or ‘carbon neutral’, as customers may not know what these terms mean.
If you are making environmental claims, make sure you are familiar with the CAP Code rules. The ASA’s Copy Advice team also provides free guidance on whether your advertisements are likely to be legally compliant, before you publish them, and you can contact them here.
The CMA’s new Green Claims Code
The CMA have recently consulted with businesses and industry groups to publish the Green Claims Code. The aim of the Code is to help advertisers communicate and understand environmental claims, and ensure that claims are backed up by transparent evidence. The CMA has advised that if you make green claims, you should check your claims against the Code and seek legal advice if you are unsure whether your claims comply.
To assist businesses with compliance, the CMA has published a Green Claims checklist. A number of these rules overlap with the requirements of the CAP Code (for example, ensuring claims are accurate and supported by credible evidence, tell the whole story of a product or service reflecting the full life cycle, and don’t exaggerate or hide important information). The Code requires that durability or disposability information is clearly explained, information that can’t fit into the claim can be easily accessed in another way, and that any comparisons being made are fair and accurate. Detailed guidance on the Green Claims Code is currently beyond the scope of our service but if you make environmental claims, you must ensure you are familiar with these rules.
You can find more guidance on ways to ensure your advertising is not misleading and complies with the relevant advertising codes in our Q&A; Advertising, labelling and pricing.
Marion joined Sparqa Legal as a Senior Legal Editor in 2018. She previously worked as a corporate/commercial lawyer for five years at one of New Zealand’s leading law firms, Kensington Swan (now Dentons Kensington Swan), and as an in-house legal consultant for a UK tech company. Marion regularly writes for Sparqa’s blog, contributing across its commercial, IP and health and safety law content.