The Advertising Standards Agency (“ASA”) continues its efforts to stop greenwashing, a marketing strategy which makes false and misleading claims that products or services are environmentally friendly. The increased availability of eco-friendly and sustainable goods and services provide a persuasive appeal to consumers who wish to contribute to the impact of climate change, but what is being uncovered is that sometimes these products and services cannot stand up to the environment claims made.

Recent ASA decisions highlight its commitment to stop greenwashing and ensure consumers understand the basis of environmental claims businesses are making:

  • “Kinder to our planet” – The ASA found Unilever’s claims that Persil washing liquid was “kinder to our planet” was not clear and did not explain the basis on which their product was “kinder” to their previous Persil products or other competitive products.
  • “100% Plant-Based Materials” and “#NoPlastic” – The ASA upheld complaints against a manufacturer of electric toothbrushes in respect of adverts on its website and Facebook that claimed their electronic toothbrushes were “100% Plant-Based Materials” and “#NoPlastic” as there was no evidence that the entire product (including the electronic components and battery) was made of materials which were biodegradable or recyclable and therefore the adverts were classed as unsubstantiated and misleading.
  • Environmental initiatives Complaints against HSBC’s advertising of their contributions to reducing carbon dioxide and greenhouse gas emissions in adverts that appeared on the high street during COP26 in October 2021 were upheld by the ASA on the basis that despite HSBC’s initiatives, HSBC continued to invest significant sums into businesses that emitted notable levels of carbon dioxide and greenhouse gases. This was not made clear as HSBC omitted this material information from its adverts.

What lessons for businesses?

Businesses who make environmental claims about their products and services are to ensure that:

  1. advertising is not being used simply to capitalise on consumer’s focus to buy more sustainably i.e. by claiming that a product/service has been improved to make it more environmentally friendly, when in fact the product did not damage the environment in the first place;
  2. any environmental claims are made clear and consideration is given to how a consumer may interpret the environmental claim being made. Businesses should think about the product lifecycle and whether any general environmental claims are reflective of the product’s full life cycle as a whole;
  3. documentary evidence should be held which can show the environmental claims are objective and capable of substantiation; and
  4. any claims comply with consumer law. The CMA has a Green claims checklist for businesses to apply when making environmental claims.

In July 2022, the CMA announced it was investigating a number of fashion brands including ASOS and George for Asda over the environmental claims of their products. While the outcome of the investigations is yet to be released, it is possible that investigations could be expanded to cover other industries. Businesses should be alert to this and ensure they are complying with any guidance that is given over the coming months.

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Charlotte advises clients on a wide range of commercial issues including commercial contracts, intellectual property, IT and data protection.

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Published: 7th December 2022
Area: Commercial

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