Food businesses are recognising the importance of environmental impact and want to differentiate themselves from their competitors, which can include bold marketing and comparative claims.
Following the Advertising Standards Authority’s (ASA) Climate Change and Environment research on consumer understanding of environmental claims in food advertisements, the ASA has issued guidance on communicating regenerative farming initiatives. This follows previous ASA guidance on environmental claims in food advertising. This article outlines the regulatory framework around making environmental claims in any advertising.
Advertising and marketing in the UK are governed primarily on a combination of legislation and self-regulation.
The self-regulatory codes reflect and supplement legislation and the self-regulatory regime deals with most complaints by consumers and competitors. Advertisers that fail to respond to self-regulatory sanctions may be prosecuted under the legislation.
Although there’s no specific law against greenwashing in the UK, consumer and business protection laws prevent organisations from falsely marketing themselves of their activities as green. The principal laws are:
The Consumer Protection from Unfair Trading Regulations 2008 – this covers claims made in, and information omitted from, advertising and marketing material for products that are available for consumers and claims made on the products themselves or their packaging.
Trading Standards or the Competition and Markets Authority enforce the Consumer Protection from Unfair Trading Regulations 2008, using criminal law to prosecute offences and by seeking enforcement orders from the court requiring organisations to compensate those harmed by the breach. The Competition and Markets Authority may also seek statutory undertakings from organisations who have infringed. Consumers can also bring claims for breaches of the Consumer Protection from Unfair Trading Regulations 2008 in certain circumstances. Again, personal liability can attach.
The Business Protection from Misleading Marketing Regulations 2008 – these regulations prohibit business-to-business advertising that misleads traders, if it's likely to affect their economic behaviour or injures, or is likely to injure a competitor. Trading Standards and the Competition and Markets Authority can enforce the Business Protection from Misleading Marketing Regulations 2008. Engaging in misleading advertising is a criminal offence and individuals, such as directors, can be liable. There’s no criminal sanction for breaches of comparative advertising provisions but Trading Standards or the Competition and Markets Authority can seek an injunction to ensure compliance with the regulations.
In 2021, the Competition and Markets Authority published the Green Claims Code - although not legally binding, organisations that follow the code should be better placed to defend themselves if challenged by the Competition and Markets Authority.
The code is based on the requirements of the Consumer Protection from Unfair Trading Regulations 2008 and the Business Protection from Misleading Marketing Regulations 2008 and consists of six principles which the Competition and Markets Authority see as being, in effect, what the law is asking for. These principles are that claims must:
The advertising industry has developed self-regulatory codes which it oversees.
There are two principal self-regulatory codes that control advertising. The code that applies will depend on the media type being used to deliver the advert:
The UK Code of Non-Broadcast Advertising, Sales Promotion and Direct Marketing (CAP code), which applies to non-broadcast marketing communications in the UK, including advertising online, including on a company’s own website, on social media, in print, in the cinema and on posters.
The CAP Code includes specific requirements for environmental claims – section 11.
The UK Code of Broadcast Advertising (BCAP code), which applies to broadcast marketing communications on radio and televisions services licensed by Ofcom.
The BCAP Code includes specific requirements for environmental claims – section 9.
The CAP and BCAP have jointly published advertising guidance which illustrates how each code rule, governing green claims, may be applied.
The Advertising Standards Authority is primarily responsible for enforcing the advertising codes. If the Advertising Standards Authority considers that there may be a breach of an advertising code, it undertakes an adjudication which it gives the advertiser an opportunity to respond, usually in writing. The burden of proof is on the advertiser to show that its green claims comply with the relevant code.
The Advertising Standards Authority cannot impose legally binding penalties on its members, by fining them for example, but its rulings are a matter of public record and are published on its website. This usually acts as a strong deterrent to advertisers, as it can undermine the credibility of the product and the advertiser.
For further information, please contact the business risk and regulation team.
For further insight, please watch our greenwashing webinar, where Kristy Coleman and Paul Collins explore the term greenwashing and the regulatory challenges and risks brands face when making false or misleading environmental claims in their advertising. Watch the recording below.