What is a green claim?
It’s a claim that suggests that a product or service is better for the environment, this could be about the general environmental impact or a specific claim. Claims can be implicit or explicit appearing in adverts, marketing material, branding, packaging or other information to consumers.
When might a green claim be described as greenwashing?
When the claim isn’t genuine, it overstates, omits or hides important information to give the impression that something is less harmful or more beneficial than it is really is.
Why is this such a hot topic?
The Competition and Markets Authority (CMA) announced in January 2023 that travel and transport would be a likely target for a future review into greenwashing.
The Advertising Standards Agency (ASA) has published guidance specific to the travel industry this year and there have been 3 recent published rulings impacting the travel industry.
What is the guidance and what does it say?
The CMA have published a green claims code. This provides useful guidance to businesses. It confirms the CMA’s view of the law and sets out 6 principles that businesses should follow, environmental claims should be:
- Truthful and accurate;
- Clear and unambiguous;
- Not omit or hide important relevant information;
- Fair and meaningful when making a comparison;
- A consideration of the full life cycle of the product or service;
- Capable of being substantiated.
A link to the guidance is here: https://www.gov.uk/government/publications/green-claims-code-making-environmental-claims/environmental-claims-on-goods-and-services. The examples outlined in the guidance are extremely helpful in demonstrating the meaning of the principles.
The ASA also have helpful guidance in UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP) and UK Code of Broadcast Advertising (BCAP) codes about environmental claims. This tells us that:
- Any claims made should be clear, unqualified claims could mislead if they omit significant information.
- The meaning of all the terms used should be explained.
- Absolute claims must be supported by a high level of substantiation.
- Claims should be based on the full life cycle of the advertised product.
The codes are available here: https://www.asa.org.uk/codes-and-rulings/advertising-codes.html
There is also some ASA guidance specific to environmental claims in travel marketing. This tells us that:
- Wording such as “environmentally friendly” or synonymous claims should not be used unless businesses can provide convincing evidence that their product will cause no environmental damage, taking into account the full life cycle of the product.
- Businesses comparing the amount of CO2 produced per passenger with other forms of transport, should hold rigorous evidence to support their claims. They should include the source of their data and ensure that the basis of a claim is made clear.
This can be found here: https://www.asa.org.uk/advice-online/travel-marketing-environmental-claims.html
We can also take guidance from ASA rulings on breaches of the CAP and BCAP codes. All the recent rulings relating to tour operators and airlines refer to breaches of the same sections of the CAP code – those being:
- 1 misleading advertising
- 1 environmental claims must be clear
- 3 absolute claims requires a higher level of substantiation
- 4 environmental claims should be based on the full life cycle of the product
The ASA’s view is that there are currently no initiatives or commercially viable technologies in operation within the aviation industry which would adequately substantiate an absolute green claim relating to flights, so be careful if you wish to make a claim and your product includes flights.
What are the penalties if we get it wrong?
Most likely is that the ASA will enforce the codes of practice. There are various ways that they can do this. Rulings they make can attract negative publicity which is unhelpful. Persistent offender may face enforcement action by Trading Standards or the CMA.
Enforcement action brought by Trading Standards or the CMA could include using criminal law to prosecute offences or seeking enforcement orders from the civil courts against businesses who break to rules – the criminal penalty is a fine or up to 2 years imprisonment. It is also possible for consumers to bring a direct civil action for misleading actions or aggressive practices.
What can businesses do to manage this?
We suggest that travel businesses:
- Maintain documentary evidence – independent evidence is more persuasive;
- Use a rigorous review process and regularly review claims;
- Avoid broad generalised claims if they do not apply to the whole product life cycle;
- Qualifying information should be prominent and should explain the claim;
- Be clear if a claim to be carbon neutral is based on offsetting;
- Avoid terms that are not generally understood by the public;
- Avoid absolute claims which require a much higher level of substantiation;
- Check your supply chain and make sure statements can be supported by suppliers;
- Think about bringing a sustainability plan to assist you, businesses like Just Tourism https://www.justtourism.co.uk/ provide sustainability services.
Think carefully before making an environmental claim – consider the guidance and the recent ASA rulings. If you are not sure about making a claim seek advice before doing so.
Please note this information is for general guidance only and is not intended to be a substitute for specific legal advice.