Green claims are on the rise… and so are ASA crackdowns

In December 2023, three airlines (Air France, Lufthansa and Etihad) had adverts banned by the ASA on grounds that the environmental claims they were making could not be properly substantiated and the ads were therefore likely to mislead consumers.

The rulings formed part of a wider enforcement initiative being conducted by the regulator, using AI to proactively search online for adverts that had the potential of breaching advertising rules. The ads included wording such as “environmental advocacy”, “fly more sustainably” and “committed to protecting the environment: travel better and sustainably”.

The ASA noted that, on the basis that “air travel produce[s] high levels of both CO2 and non-CO2 emissions, which were making a substantial contribution to climate change”, the regulator was not convinced that such claims held water. There are currently no commercially viable technologies in aviation that would substantiate green claims in the sector.

In relation to the statement that customers would “fly more sustainably”, the ASA considered that this was unqualified without further clarity being offered in the ad. This caused an issue because understanding how the claim worked in practice would be material information for consumers to make an informed decision.

In October 2023, Nissan got caught out when one of their TV adverts was not sufficiently clear on the fuel source of its Qashqai and X-Trail vehicles (with “e-Power”). The ad focused heavily on electricity (despite the vehicles also being powered by a petrol engine) and this would likely have the effect that consumers would think the vehicles are better for the environment. The key points raised by the ASA in their ruling were the requirements that environmental claims must be clear and that all of the terms used in an advertisement must be clear to consumers, which was not the case in this instance, due to the confusion around fuel sources.

Similarly in November 2023, Renault came under the ASA’s microscope for telling consumers to “RETHINK HYBRID” and that their Austral model could provide “up to 80% electric driving in the city.” The ASA stated that “there were numerous possible interpretations of the claim, including that it reflected the proportion of an individual journey, regardless of distance, that the vehicle was able to cover without having recourse to using petrol or diesel.” The main issue was the fact that the basis of Renault’s claim was unclear and, in addition, that without further information in the ad, consumers would be unable to make an informed decision when deciding whether or not to purchase the product. The ASA held that material information had been omitted and therefore the ad was misleading.

This sector is a particularly interesting one, given its players’ significance in realising the net-zero transition. In October 2023, Repsol was found to have breached advertising rules by posting a paid-for online display ad seen on the Financial Times website and in the FT’s digital energy newsletter, which featured an image of a water droplet with text stating “Renewable hydrogen, another alternative to reduce emissions.” The ad was complained of because information about the company’s business activities (and their effect on the environment) was omitted. The ASA considered, amongst other things, whether the target audience (which was likely to include investors) would know that renewable hydrogen was in its infancy and not yet commercially available. It also looked at the company’s emissions data and the fact that their renewable hydrogen production had not started yet – this was due to start in 2024. Further, the company was still investing in oil and gas exploration and the oil and gas side of the business was at the time of the ad considerably larger than its net zero activity. Ultimately, this was material information viewers of the ad would require to make an informed decision to invest and therefore the ad was likely to mislead.

In December 2023, Equinor had an ad in the Economist banned, which, in addition to the company’s involvement with oil and gas, set out the company’s efforts in relation to wind and carbon capture, highlighting its role in providing “broad energy for a brighter future.” The ad was found in breach of advertising rules by the ASA, because it omitted significant information about the overall environmental impact of Equinor’s business activities. Similar to the instance above, advertising rules require significant information to be included to support unqualified green claims, otherwise it is likely to mislead. The ASA considered that “further information about the overall proportion of Equinor’s business model that comprised renewable energy and [carbon capture] was material information that should have been included” and therefore, the ad was in breach.

In December 2023, Charles Tyrwhitt was found in breach of marketing rules, because an ad made an unqualified statement in relation to the company’s green credentials without sufficiently backing it up. Specifically, the ad stated that “[It is] proud to be a Carbon Neutral business.” The company had based its claim on a report by a sustainability consultancy, as well as sustainability guidelines published by the British Standards Institution. Despite doing its research and relying on the advice it received on its sustainability efforts, the claim itself had not included the basis upon which the statement had been based. This was information consumers would need to know in order to make their own assessment of whether or not the company was indeed carbon neutral.

The last claim we looked at related to an advert posted on Instagram by Brewdog in December 2023. The ad stated: “BEER FOR YOUR GRANDCHILDREN” and included wording in a childlike, handwritten form saying: “drink it for me” and showed a childlike drawing of an earth on fire. The ad ultimately got banned, but interestingly, Brewdog argued that they had directed customers to a link in their bio for more information on their climate efforts. When responding to the ASA, the company argued that this was standard practice and therefore the ad should not be considered to be in breach of advertising rules. The ASA considered that Instagram’s 2,200-character limit was sufficient for the company to qualify its claim and that referring customers to a link on a separate webpage would not be sufficient.