6th July 2023
Businesses and other commercial organisations need to be more aware about the environmental claims they make about their activities under newly issued guidance. Here’s what you need to know:
CAP, BCAP and the ASA
The Committee of Advertising Practice (CAP) code and its Broadcasting equivalent (BCAP) are the UK’s advertising rules for agencies, advertisers and media owners and are designed to ensure that marketing communications are legal, decent, honest and truthful.
Both are policed by the Advertising Standard Authority (ASA), the national self-regulatory organisation of the advertising industry. The ASA’s role is to decide whether advertising, sales promotions, direct marketing and even websites, comply with the codes across a range of media, including print, broadcast and online.
Guidance against Greenwashing
Recent updates to the guidance address the issue of ‘Greenwashing’ – when claims are made by an organisation to promote the positive environmental impacts that their activities are having, which in truth are non-existent. It can also mean focusing on one green initiative, when the wider background to the company is that they have a less positive affect on the environment.
The ‘Environmental Claims’ update highlights the need for information to be provided to give consumers an understanding on the basis of a claim, as any unclear or unqualified claims could otherwise be misleading.
Many sectors are seeking to reduce their environmental harm, having historically been responsible for a negative impact, but not all businesses are acting in this way to the same degree and adverts should not generally promote positive environmental credentials where performance is not to the level being claimed.
To do this, marketers are required to consider consumers’ likely interpretation of a claim as well as how knowledgeable the audience is likely to be, before any such communications or advertising is issued. Information also needs to be provided to consumers in the context of the business’s full environmental impact and covers every area of the business’ external profile, from adverts and campaigns to logos and general communication.
The rules don’t just extend to what claims are made in words, but any medium by which the consumer can make an insinuation, including imagery. This could include using images of forests and green fields when it isn’t necessarily linked to the product or service.
While there is no law specifically designed to tackle greenwashing, it is caught by general laws protecting consumers and businesses from misleading marketing. This means it is possible for Trading Standards or the Competition and Markets Authority to enforce the law by prosecuting offences under criminal law or taking action in the civil courts.
What this means for businesses
To put it simply, marketers needs to be absolutely sure that they consider the viability of what they say about their environmental impact and should understand that the law does not prevent environmental claims being made about products and services, provided they do not mislead consumers.
If a complaint is made to the ASA about an ad, the business will be usually given a chance to informally resolve the claim, including by withdrawing and/or rectifying it, before it becomes
public. Should they seek to justify it, claims would be investigated, and the rulings published - assessed through the eyes of the average consumer - and have the potential for heavy reputational impact if unsuccessful.
Marketers should be vigilant around the accuracy of their claims, considering not only the claim itself but also taking an organisation-wide view of their environmental impact and, most importantly, whether they can back up the claims with evidence.
Despite this additional challenge, they should not be discouraged from making environmental claims, it is after all an important global matter and businesses are being met with the challenge of not only playing their part in tackling the climate crisis, but in demonstrating that effort.
In order to avoid greenwashing, marketers should ensure the language used is appropriate. This includes:
Up-to-date documentary evidence should be kept by businesses for green claims they make. This can include internal documents but, given the court of public opinion can often be just as damaging to a reputation as more formal processes, independent evidence can be most persuasive.
Using a rigorous review process to assess the accuracy of any green claims before they are used in marketing materials and other public communications also allows claims to remain accurate.
If businesses have concerns around their claims, whether historic, current or future, they should seek sound legal advice in order to avoid any risk of future regulatory action or reputational damage.
Thrings Commercial team is experienced in supporting organisations of all sizes in successfully navigating the legal matters throughout the business’ life cycle, including updating practices to meet new rules and regulations. To find out more and to get advice on securing your businesses’ interests, please do get in touch.