New rules on ‘Green Claims’: Make sure environmental marketing is compliant and avoid “Greenwashing” challenges

One of the main protest issues during COP26 Conference has been “Greenwashing”.

The eyes of the world have been on Glasgow and while our world leaders are seeking to achieve serious commitments to environmental action, we are all considering how we can become more sustainable.

Businesses are increasingly aware of their need to contribute to the fight against climate change. A commitment to sustainability is necessary to demonstrate authentic corporate social responsibility but it is also something that consumers increasingly expect. Consumers are more likely to engage with enterprises that put ethical practices at the forefront of their business model. As a result, many businesses are advertising their environmental commitments to attract customers seeking a greener option.

Historically environmental advertising claims were not strictly regulated, meaning that businesses were allowed to advertise that their product or service was ‘green’ without any real parameters for what it means to be ‘green’, ‘sustainable’ or ‘environmentally friendly’. To stop non-legitimate “greenwashing” practices the UK Competition and Markets Authority (CMA) has published a ‘Green Claims Code’, which is a guidance note to assist businesses to make environmental claims which are authentic. The CMA hope that this will protect businesses from unfair competition and give the genuinely greener options the right to advertise their sustainable options fairly.

What has changed?

The guidance includes six ‘principles’ which any advertisement making a ‘green claim’ must comply with:

1. Claims must be truthful and accurate: this also means any claims made in adverts must only give an impression that is not exaggerated, but reflective of how green or sustainable a product actually is.
2. Claims must be clear and unambiguous: wording must be straightforward and not likely to mislead consumers.
3. Claims must not omit or hide important relevant information: key information as to the environmental aspects of the product or service must not be omitted.
4. Comparisons must be fair and meaningful: objective comparison is necessary, based on fact and up-to-date information.
5. Claims must consider the full life cycle of the product or service: this is an important condition, specifically applied to green claims. A product or service will have a varying impact upon the environment throughout its lifespan, and as such any claims made must be holistic.
6. Claims must be substantiated: lastly, any claim must be backed up by scientific or other evidence. The evidence does not have to be provided in the advertisement itself but if a consumer was to enquire, businesses must be ready to provide the evidence.

It is important to remember that while this guidance is not legally binding the CMA has stated that non-compliance with these principles could be used as evidence in a UK Consumer Protection Law action. As such, compliance with the principles is crucial to reduce any risk potential exposures to infringement.

How can we help?

Our Intellectual Property team advises on a whole range of compliance matters, from advertising to trade marks. It is important that your business should be able to contribute to the fight against climate change and it is important that consumers have the ability to choose a ‘green option’. We can make sure that your marketing does that fairly and in compliance.

If you have any questions about advertising compliance or marketing the greener aspects of your business, please contact us.

This article was co-written by Jamie McGowan, Trainee Solicitor.