Green claims in advertising continues to be at the top of the ASA and CMA’s 2024 agenda

1. Updated ASA guidance on green disposal claims

Following the ASA’s research into public understanding of recycling claims, it also updated its guidance on green claims to include a new section on ‘green disposal’ claims (e.g., ‘recyclable’, ‘recycling’, ‘compostable’ and ‘plastic alternative’).

The guidance specifies the types of information that should be included when using green disposal claims and urges advertisers to:

• Be clear which parts of the product are covered by the green disposal claim. For instance, claims such as “100% recycled” should only be used if all components of the product are made from recycled materials.
• Consider how the average consumer will interpret the green disposal claim, and whether any additional information about the disposal process is needed, especially where it differs from the average consumer’s expectations.
• Include explanations about how long it takes for the product to fully biodegrade or compost.
• Disclose any relevant information about harmful by-products released during the disposal process.
• Substantiate claims with evidence that relates to the likely conditions of use for a product rather than general evidence not directly applicable to the product in question.

After a short grace period, the ASA will from 1 April 2024 begin proactively investigating potentially problematic green disposal claims with a focus on those that: omit end of use green disposal information; suggest a product has multiple green disposal options where that is misleading; or where substantiation to back up green disposal claims is not present.

2. ASA’s 2024 - 2028 plan

This emphasis on green disposal claims fits neatly within the ASA’s wider six-pronged 2024 – 2028 strategy focusing on:

• People;
• Planet;
• Online;
• Awareness and buy-in;
• Collective ad regulation; and
• Operational transformation.

As part of its ‘planet’ limb, the ASA intends to prioritise the regulation of misleading green claims. Ads will be scrutinised both for their targeting and content to ensure that companies do not misrepresent their green credentials or those of their products and services. The ASA sees an increased risk for consumers to be misled as the UK transitions to net zero and is aiming to be more proactive in addressing potentially misleading or irresponsible green claims. This has already been reflected in the ASA’s most recent rulings which considered and upheld complaints in relation to two car manufacturers using the “zero emissions” claim for hybrid vehicles.

Crucially, the ASA will continue to use and develop its AI-powered ‘Active Ad Monitoring’ system to monitor the internet quickly and comprehensively. This tool empowers the ASA to identify a much larger number of green/environmental ads at once and bring swifter enforcement action. The margin for error for advertisers is therefore much slimmer than it once was.

3. CMA investigating large use of green claims

In parallel, the CMA is also stepping up its scrutiny of green claims in advertising, having launched a number of formal investigations in the retail and FMCG sectors.

These investigations, and the CMA’s increased focus on misleading green claims in general, comes at a time when the Digital Markets, Competition and Consumers Bill is making its way through Parliament. As it stands, the bill provides the CMA with direct powers to impose fines of up to 10% annual global turnover for a company’s breach of consumer legislation.

Given this increased regulatory scrutiny and enforcement risk, it is crucial that businesses avoid making potentially misleading environmental claims by carefully considering guidance before making any such claims.

For further information and to find out how we can help, please contact Rob Turner, Shona O’Connell or Amy Cole.