Green claims and red flags: CAP updates its environmental claims guidance

For years, we have highlighted how important it is that regulators don't let perfection be the enemy of the good when it comes to green claims. Businesses with genuine sustainability credentials shouldn't feel they have to keep them under wraps for fear of regulatory scrutiny. After all, if consumers are going to make greener choices, they need to know which products and services are actually green. And yet, with the threat of huge fines from the CMA, and a very strict and literal approach being applied by the ASA, advertisers can feel the pressure - and at some point, the risks of making green claims outweigh the benefits. The problem then is that nobody wins! Businesses give up and stop focusing their energies on green credentials, progress and initiatives that they don't feel able to crow about... and we can all get stuck in a rut!

And there was a worrying sign: the ASA recently published a "pulse study" on green claims, which showed that environmental claims are relatively uncommon nowadays....

A breath of fresh air?

But, some good news. To try to allay some of these concerns, CAP has now provided advertisers with a greener route map, updating its guidance on making environmental claims in advertising, which has been updated to reflect the requirements of the Digital Markets, Competition and Consumers (DMCC) Act 2024, alongside a checklist that distils key principles into a simple reference tool for advertisers to use during the creative and approval process.

The guidance covers the key principles advertisers should consider when making environmental claims, including how claims are likely to be understood, the evidence needed to support them and the importance of presenting environmental information clearly and responsibly. It also references the CMA's Green Claims Code.

Can't see the wood for the trees?

As well as the formal guidance, CAP has also issued a guide called "Greenspeaking with confidence" aimed at helping advertisers avoid getting tangled in the undergrowth of environmental advertising rules. It aims to help advertisers to avoid common pitfalls and communicate with greater confidence and is structured around five key principles:

consider how consumers are likely to understand your claim
hold adequate evidence before making objective claims
avoid overstating the environmental benefits of a product, service or initiative
make sure claims and any qualifications are clear
be transparent about environmental initiatives and ambitions.

Weeding out the bad apples

The ASA has set out priority areas for enforcement in this area, including carbon-neutral and net zero claims, environmental claims in food adverts and green disposal claims. The guidance also includes practical examples and advice on social responsibility and avoiding claims that give advertisers undue credit for complying with the law or standard industry practice. Examples include:

trivialising consumer behaviour likely to result in harmful pollution or excessive waste
encouraging or condoning non-recycling of recyclable packaging
encouraging or condoning consumers disregarding the harmful environmental impact of their actions
encouraging or condoning littering.

The CMA is branching out

Although the ASA does not have fining powers, the CMA does, and has previously shown an interest in enforcing in this area and is likely to look at ASA rulings to see where there may be systemic issues that it may want to look at in more detail. As well as its Green Claims Code, earlier this year it issued guidance on how to get green claims right across the supply chain so green claims are very much on its radar.

Make hay while the sun shines

The message from both CAP and the CMA is clear: businesses should feel able to communicate genuine environmental benefits, but only where they can back them up. Robust internal review processes are becoming just as important as the claims themselves. With CAP's new checklist providing a practical framework, advertisers have one less reason to feel uncertain about going green with their marketing.

The root of the matter

In short, businesses looking to showcase their environmental credentials should not consign their marketing ambitions to the scrap heap. But they should make sure that any claims are properly substantiated, clearly explained and supported by appropriate internal sign-off processes.

For more information, see our Consumer Law Hub and our environmental advertising guide.