Among the last set of adjudications to be published by the Advertising Standards Authority (ASA) in 2024 was an illuminating decision concerning one poster ad and three LinkedIn ads published by Lloyds Bank. The ruling was the result of a complaint submitted back in May by Adfree Cities, who have been enthusiastically whipping the ASA to act against allegations of greenwashing in recent years. We touched on this in our fireside chat in November, with Guy Parker, Chief Executive of the ASA, but he confirmed that the ASA are not concerned about the provenance of complaints, even if they come from the same campaigning organisation, provided they raise a valid concern. 

In this case, the relevant provisions of the CAP Code state that the basis of environmental claims must be clear, and that unqualified claims can mislead if significant information is omitted. The challenge by Adfree Cities was whether the ads were misleading because they omitted significant information about Lloyds' contribution to carbon dioxide and greenhouse gas emissions. Complaints that ads are misleading by omission are a growing trend, and is an argument that Adfree Cities has used successfully before, not least against another bank, HSBC. These complaints are very difficult to defend because, unlike the requirement that advertisers must be able to substantiate their claims, 'misleading by omission' complaints require advertisers to prove a negative – which is always a tough challenge.

As the adjudication concerned four different ads in the Lloyds campaign and resulted in the complaints being rejected against three of them but upheld against one, it provides a useful opportunity to compare the ASA's analysis of the four executions. From this comparison, we can extrapolate why the famous black horse was able to gallop off into the distance in relation to three of them, but unceremoniously packed off to the knackers' yard in relation to the last one.

Off to the races

The first execution was a poster ad which appeared on billboards and bus shelters, with a picture a person in a lab coat holding some seaweed. The accompanying text read, "Growing the business as fast as the seaweed used to make their packaging. Right now, good things are happening at Notpla", which is the name of the business being funded by Lloyds. This was followed by further copy stating, "Lloyds Bank Business", followed by the Lloyds Bank logo. The business's name appeared in small white writing in the bottom left-hand corner of the ad.

Lloyds explained that this was one of several executions that had focused on various different examples selected for their innovation, including a bakery, a distillery and a pub. Their intention was to show the bank working with growing businesses, but the ad made no claims about the environmental or social credentials of either the bank or the featured business. 

Although the ASA acknowledged the ad was part of a wider campaign, they decided that it had to be considered on its own merits as consumers were likely to see it in isolation. Crucially, however, the ASA accepted that although this execution featured a business making packaging from seaweed, and therefore one with an environmental benefit, consumers were likely to understand it as focusing on how Lloyds supports businesses to develop and expand, rather than being an example of the bank's green business financing. On that basis, it was unlikely to be interpreted as making a more general green claim about the bank and so the complaint was not upheld in relation to the poster ad.

Photo finish at the winning post

The first two of the three paid-for LinkedIn posts considered by the ASA also safely made it to the finish line, with 'not upheld' adjudications, despite a lengthy stewards' enquiry, or ASA investigation, lasting about 6 months.

The first LinkedIn post comprised an image of grass, wildflowers and butterflies with copy that said, "We're partnering with Projects for Nature to support nature recovery and engage communities across projects in England"....."Projects for Nature" and "engage communities". There was a link labeled "Find out more" at the foot of the post.

The second LinkedIn post used the same image as the first post, with copy that said, "We're teaming up with Projects for Nature to help protect our natural environment. Our funding will support three projects that include: Creation of a 100-mile natural recovery corridor along three rivers in Sussex, helping boost biodiversity, reduce flooding and enhance the rural economy; Natural flood management in Cumbria, including re-wiggling rivers, planting trees and restoring wetlands; Working with partners and tenant farmers in the Peak District to establish more trees, healthy peatlands, thriving wetlands and grasslands and improve soil health and water quality".

Lloyds said these claims were factually accurate, clear and intelligible and concerned specific nature recovery projects to which the bank had made donations and did not omit any material information. The ads had also been reviewed by the relevant charity partners and UK government departments to ensure accuracy and clarity.

The ASA agreed that people seeing the ads would understand them to be about Lloyds' donation to Projects for Nature and support for specific nature recovery projects, rather than as wider environmental claims about Lloyds' business practices.

Falling at the final hurdle

Up to this point, it was all going so well for Lloyds. All they had to do was clear the final fence and race for home. Unfortunately for them, however, they managed to stumble and fall with the fourth ad in the campaign, being the third of the three LinkedIn posts. 

This stated, "What are we doing to help accelerate the transition to a low carbon economy? We're committed to supporting the energy transition, by continuing to [...]". To see the remainder of the caption, readers had to click on a "see more" button. The caption then continued, "[...] reduce our reliance on fossil fuels and putting the weight of our finance into clean and renewable energy. We use 100% renewable energy to power our buildings; We're aiming to halve our own energy consumption by 2030; We're also helping people and businesses across the UK to understand how they can be more sustainable". An animated video embedded in the post showed electricity from a power station going to commercial and residential buildings, as well as an electric vehicle driving through farmland and a woodland. The video then cut to an image of Earth with text stating, "Helping Britain Prosper", with the word 'prosper' being written in a green font.

The bank's defence was that their claims were factually accurate and substantiated. They said that the ad provided an overview of the sectors with which they were involved, the support they offered and the steps they were taking towards greater sustainability. They had tried to balance this with an acknowledgment about their involvement with carbon-intensive industries and by stating that they were "continuing to reduce [their] reliance on fossil fuels". The ad included links to their website which provided more detail about their sustainability activity, including their most recent sustainability report. The image of the Earth was used because the ad had been published to coincide with Earth Day 2024 and 'prosper' had been written in green, as that was the colour used in the bank's branding for many years. 

The Lloyds Bank Sustainability Report 2023 showed that the bank had total financed emissions of 33 MtCO2e (million tonnes of carbon dioxide equivalent) in 2022. At the end of 2023 they had stopped funding thermal coal power in the UK and "did not directly finance retrofit activities that prolonged the life of existing thermal coal facilities". Lloyds also had plans to exit from all diversified mining companies that operated thermal coal facilities by 2030. Finally, the bank's targets for 2030 were to reduce the emissions intensity of their power sector clients by 81% and to reduce the absolute emissions from their oil and gas clients by 50%.

The ASA considered the context for Lloyds claims as being the transition to net zero under way at many companies. Consumers would understand that the bank was taking steps to reduce its operational carbon and greenhouse gas (GHG) emissions by using renewable energy and halving energy consumption by 2030. The problem was that the ad also made more general, high-level claims about its financing of clean and renewable energy, and its contribution towards a low-carbon economy, including by helping its customers become more sustainable. Without any qualifying information, those claims and the images in the final scene of the video would give consumers the impression that renewable energy formed a significant proportion of Lloyds' investments and the companies it financed. The 'balancing information' related to Lloyds' use of fossil fuels in its operations, rather than that of the companies it financed.

While Lloyds may be making progress towards net-zero and promoting sustainability, its own Sustainability Report showed that it continued to finance activities that represented a large contribution to GHG emissions and would continue to do so in the near future. 

The ASA therefore concluded that this was material information that was likely to affect consumers' understanding of the ad's overall message. Without that information, the ad omitted material information and was likely to mislead.

So what lessons can be learned from this adjudication?

1. If you want to make a green claim, keep it very specific and avoid generalised, high-level claims.
2. It's not enough to be able to substantiate the claims you are making; you must also consider whether you are being misleading by omitting any significant information. 
3. If you're a bank or a carbon-intensive business, operating in sectors such as energy, aviation or automotive, you have a large target on your back. Campaign groups, who are very smart and well-organized, will trawl through your own published corporate reports to find the unalloyed truth about your carbon footprint and use that against you.
4. The ASA will interpret the rules strictly and the burden of proof is on the advertiser not only to prove that their claims are not misleading, but also to prove that their ads are not misleading by omission.
5. As Joseph Heller said, just because you're paranoid, doesn't mean they're not out to get you.