Iona Silverman, Intellectual Property and Media Partner at national law firm Freeths explains 5 dos and don’ts for fast-moving consumer goods (FMCG) brands making environmental claims.
Earlier this year the Competition and Markets Authority (CMA) announced that it was expanding its misleading green claims project to look at FMCGs. The review will examine the claims made in relation to a wide range of essential items, such as food and drink, cleaning products, toiletries and personal care items.
The CMA has not given details of how it will undertake its review other than saying that it will analyse environmental claims made about products – both online and in store – to consider whether companies are complying with UK consumer protection law.
Brands across all industries are keen to shout about their green credentials.
If the CMA uncovers evidence suggesting green claims could be unfounded, it will consider taking enforcement action using its formal powers. Greenwashing is a hot topic: the Advertising Standards Authority (ASA) recently found a poster which featured a plane in flight where the underside of the plane was represented by an image of the earth from space to be misleading.
The ad included the following text: “LUFTHANSA GROUP. CONNECTING THE WORLD. PROTECTING ITS FUTURE. #MakeChangeFly”. The ASA concluded that the poster gave a misleading impression of Lufthansa’s environmental impact.
Brands across all industries are keen to shout about their green credentials. To manage your risk of falling afoul of the rules, consider the following when making environmental claims in advertising/marketing materials or on pack:
Dos for making environmental claims
1. Be honest
Be honest with yourself and your consumers about the changes your brand has made to become more environmentally friendly, and don’t overstate.
2. Be clear
What are you trying to say? Think about your message and how it could be interpreted. Lufthansa argued that the words “Protecting its future” was not an environmental claim, but the ASA found that they were as they came directly after the word “world” and the poster featured an image of the Earth.
3. Substantiate your claims
You need to hold the data necessary to substantiate all claims you are making. You cannot rely on repeating claims made by your supplier, or even data held by your supplier.
4. Beware of comparative claims
Make comparisons fair and meaningful. Vague claims, such as “Kinder to the planet” are not acceptable if it is not clear first, what you are kinder than, and second, how you are kinder to the planet.
5. Consider the net impact of your business on the environment
HSBC got caught out when making claims that they could substantiate because it was not clear in their poster that although they were investing in the environment, they were investing significantly more in “dirty” industry. If it isn’t clear to your consumer what the net impact of your business is on the environment, you need to tell them.
Don’ts for making environmental claims
1. Use buzzwords
Claims such as “sustainable” or “eco” don’t mean very much. The CMA has specifically said that problematic claims include the use of “vague and broad” statements. Two examples it provides are marketing a product as sustainable or better for the environment with no evidence and making misleading claims about the use of recycled or natural materials in a product and how recyclable it is.
2. Hide or omit important relevant information
If your claim only relates to part of your product or part of its lifecycle, say so. Link through to a web page that gives consumers more information on what you are doing and the intended impact. The more information you can give, the less likely it is that your claim will be found to be misleading.
3. Make assumptions
Tesco fell afoul of the ASA rules when it said, in relation to its plant-based products, that “a little swap can make a difference to the planet.”
The ASA acknowledged that it was generally accepted that meat-heavy diets have a greater environmental impact than plant-based diets, however, they also noted that plant-based products could contain ingredients sourced from around the world, meaning they could have a high carbon or negative environmental impact.
Therefore, it wouldn’t necessarily always be the case that plant-based products have a lower carbon or environmental impact than meat-based products. Don’t make assumptions. You need to be able to substantiate the specific claims that you are making.
4. Underestimate the data you need to substantiate your claims
Old data, data covering only part of the claim, product or product life cycle, or data covering only certain competitors in relation to absolute (“best”/“lowest emissions”) claims will not be sufficient. Gathering the relevant data may seem like an unduly arduous process, but it’s necessary.
5. Lose sight of your consumer
Customers want clear guidance on how to go green and are relying on their trusted brands to help them. Go on the journey together.
