Green Claims: a guide for businesses

As many of us move to adopt more environmentally conscious and sustainable lifestyles, people have become increasingly concerned with the environmental and ethical impact of the products and services they consume. In response, businesses are focusing more and more on the environmental benefits of their brand when marketing products and services to consumers.

Whilst UK consumer protection law does not prevent brands from making environmental claims, it does regulate the nature of the claims which can be made, so to ensure consumers are not misled. This article explores the rules and regulations in force in the UK around environmental claims and outlines some practical considerations for businesses when making these types of claim.

What are “green claims”?

An environmental claim (or “green claim”) is any claim which states or suggests that a product, service, brand or business is good or better for the environment, whether in general or in relation to a specific environmental aspect (e.g. air, soil or water quality).

Green claims can appear in advertisements (whether broadcast or non-broadcast advertisements), within marketing materials, packaging or branding (including within a business or trade name) and can be explicit or implied.

How is advertising regulated in the UK and why is this important to green claims?

The UK advertising industry is primarily self-regulated, whereby those operating within it (i.e. advertisers, agencies and the media) are required to produce advertising that complies with certain codes. Two key bodies enable self-regulation within the industry: The Committee of Advertising Practice (CAP) and The Advertising Standards Agency (ASA). The CAP is responsible for writing advertising codes and the ASA is the independent advertising regulator which administers the advertising codes prepared by CAP.

The two main advertising codes prepared by the CAP are:

1. The UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (known as the CAP Code); and
2. The UK Code of Broadcast Advertising (known as the BCAP Code).

Each advertising code sets out a series of rules, to which all sales and marketing communications must adhere. When businesses create sales and marketing communications, they are responsible for ensuring the content of those communications and the administration of sales promotions comply with the rules set out in the CAP and BCAP codes.

Both the CAP Code and the BCAP Code include specific rules relating to environmental claims (being rule 11 of the CAP Code and rule 9 of the BCAP Code).

In administering the advertising codes, the ASA investigate and rule on any complaints of breaches of the codes, as well as conducting its own research and investigations. Should the ASA deem there to be a breach of either code, the party responsible may be subject to sanctions. These sanctions might include a public finding against the non-compliant business (which has potential to cause significant reputational damage) and/or a referral to Trading Standards, Ofcom or the Competition and Markets Authority (CMA) (as applicable) which can issue court proceedings, impose fines and/or withdraw licences to broadcast.

What are the rules on green claims?

The rules on environmental claims under the CAP and BCAP codes follow the central themes (adopted throughout both codes) of clarity, provision of appropriate information and ensuring consumers are not misled. However, importantly, they also introduce some additional requirements where claims state, suggest or imply a product, service, brand or business has environmental benefits. These specific requirements include:

• All absolute claims must be fully substantiated – absolute environmental claims are unqualified claims on the environmental benefits of a product, service, brand or business (examples include claims which use words such as “eco-friendly”, “green” or “best”). Whilst businesses are not restricted from making these types of claim, each absolute claim made must be supported by a high level of substantiation (i.e. you must be able to show robust and relevant evidence that supports the claim you are making).
• Environmental claims must be based on the full life cycle of the product – environmental claims must be based on the full product life cycle of the advertised product, if they are not, it must expressly say so and make clear the limits of the life cycle to which the claim relates. For example, whilst using a certain type of product might be environmentally friendly (especially when compared to an alternative), a claim that the product is “environmentally friendly” could still be misleading unless it can be demonstrated that producing the product also has no negative environmental impacts.
• If there is difference in informed or scientific opinion on the topic of a claim, it must not be suggested or implied that the claim is universally accepted – marketers must not use one school of thought or opinion to their advantage and suggest or imply it is generally or universally accepted if there is significant divergence of informed or scientific option. This is potentially misleading and fails to provide consumers with relevant information.
• If a product or service has never had a demonstrably adverse effect on the environment, it must not be suggested or implied that a new formulation of the same product has changed to improve the effect it has on the environment – this type of marketing is again potentially misleading and fails to provide consumers with relevant information.

To see rule 11 of the CAP Code and rule 9 of the BCAP Code in full, please visit www.asa.org.uk.

What is The Green Claims Code?

The Green Claims Code is a separate advertising code produced by the CMA, introduced in September 2021, which relates only to environmental claims. It is intended as guidance both to help businesses better understand the rules surrounding environmental claims when advertising their products and services, as well as to help consumers identify genuine environmental claims. Whilst it is distinct from the CAP and BCAP Code, both the CAP and BCAP Codes state that marketers should additionally take the Green Claims Code into account.

The Green Claims Code consists of six key principles:

• claims must be truthful and accurate;
• claims must be clear and unambiguous;
• claims must not omit or hide important relevant information;
• comparisons must be fair and meaningful;
• claims must consider the full life cycle of the product or service; and
• claims must be substantiated.

The Code is not an exhaustive guide to making environmental claims and should always be considered alongside the CAP and BCAP Codes. To see the full text of the Green Claims Code, please visit Green claims code: making environmental claims – GOV.UK (www.gov.uk).

Practical considerations for businesses

If your product, service, brand or business has genuine environmental benefits, it is important that you are able to reference those benefits when marketing your product. To avoid falling short of the rules surrounding green claims, our top tips for promoting compliance are:

1. ensure the basis of each claim you make is as clear as possible – this will help you to ensure supporting evidence is relevant, help to avoid exaggeration and, importantly, help the consumer understand the claim you are making;
2. use absolute claims sparingly and only use them if you are able to quickly and comprehensively demonstrate that they are true;
3. always consider the full life cycle of the product or service – just because use of a product is not environmentally damaging does not mean manufacture or disposal of the same product is too – context is crucial; and
4. keep a written record of the claims you make, along with a record of the evidence you have to substantiate each claim.

For more information on green claims, please contact Philippa Collison and David Thompson.