UK advertising regulator takes action on greenwashing (again) with clampdown on ads that overstate significance of sustainability initiatives

On 7 June 2023, the UK Advertising Standards Authority published three further rulings in respect of ads making claims about sustainability initiatives, as part of its continued efforts to address greenwashing.

The ASA upheld complaints in respect of ads by Shell, Petronas and Repsol, on the basis that they each exaggerated or omitted material information about the proportion of the advertiser’s business activities that were comprised of lower carbon activities. The ASA considered that the ads were therefore misleading, in breach of the following CAP/BCAP Code Rules:

• 3.1: Marketing communications must not materially mislead or be likely to do so.
• 3.3: Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
• 11.1 CAP / 9.2 BCAP: The basis of environmental claims must be clear. Unqualified claims could mislead if they omit significant information.

The rulings continue a trend of the ASA taking a strict approach to enforcement against potentially misleading environmental claims (see our previous blog here). We expect the ASA to continue to scrutinise green claims closely as part of its ongoing climate change and environment programme of works (as noted here) both in response to complaints, and of its own volition.   

Four key take-aways

1. The ASA remains highly focused on claims which it considers overstate the overall environmental impact of a business. Although it acknowledged the steps each business was taking to invest in lower carbon alternatives, as well as their respective sustainability targets (e.g. net zero by 2050), it found that each was nonetheless making a continuing significant contribution to greenhouse gas emissions. The advertised initiatives formed a small proportion of the overall business model. The ASA does not appear to have engaged with arguments about the need to raise consumer awareness of, and increase demand for, lower emissions energy products and services as part of the energy transition. This position echoes that of the ASA in previous rulings, which suggests that the ASA expects any ad making claims which could be interpreted as claims about the overall environmental impact of a business to carry clear and explicit qualifications to contextualise the significance of the specific claims made. It remains unclear how the ASA expects businesses to qualify overall environmental impact claims effectively, without risking further confusion for consumers. Guidance from the ASA on this point would be welcomed.
2. Linked to the point above, focusing on production or initiatives in one jurisdiction, or on a particular business division may not be enough for multinational companies to persuade the ASA that the claims made are narrow, specific, and can be substantiated. In all three cases, the ASA looked at the group’s overall reported GHG emissions and short, medium and long-term plans (particularly where these indicated plans to expand, rather than reduce, higher-carbon intensive activities). 
3. Advertisers should continue to be mindful of the imagery used in their ads. The ASA considered that the leafy imagery in an ad for biofuel and synthetic fuel products and investments, in conjunction with the wording of the claims made, would lead consumers to interpret the claim as meaning that these offerings formed a “significant” element of the advertiser’s current activities, rather than a “fraction” of its current and near future planned business activities. The ASA’s green claims guidance provides little in the way of further clarity on this point, though advertisers have previously been criticised for using imagery and colours that contributed to an general impression that the advertiser’s overall environmental impact was net positive (see Innocent, February 2022).
4. For broadcast ads, having Clearcast pre-review and approve certain environmental claims (for example, that a specific number or proportion of UK homes are subscribed to a particular 100% renewable electricity tariff) can still provide comfort to advertisers that an intended ad will be compliant. However, this is not guaranteed: the ASA disagreed with Clearcast’s view that the ad did not misrepresent the overall environmental impact of the respective operations of Shell and Petronas. Until further guidance is published by the ASA, advertisers may wish to consider engaging with the ASA at an early stage when developing specific campaigns to test (where possible) how any environmental claims might be viewed by the ASA.