The Advertising Standards Authority (ASA) has recently published its ruling relating to advertisements produced by the popular drinks company Innocent. The ruling gives the ASA reasons as to why it decided that Innocent’s advertisements breached advertising rules. Following the ruling, the ASA has banned Innocent’s TV, YouTube and Video-on-demand (VOD) ‘fixing up the planet’ advertisements that were seen in May 2021.
Below B P Collins’ corporate and commercial team has summarised the ASA’s assessment, provided a short summary of the advertising rules and put forward some suggestions that businesses can implement to increase the chances of their advertisements being compliant with the rules.
The advertising rules
We provided an overview of the advertising rules following the introduction of the Competition and Markets Authority’s (CMA) Green Claims Code in our article in October 2021, which you can access here. In that article, we covered consumer protection law, business protection law, the Green Claims Code and the UK Advertising Codes.
As a reminder, under the Green Claims Code there six key principles that can help businesses comply:
- Claims must be truthful and accurate.
- Claims must be clear and unambiguous.
- Claims must not omit or hide relevant information.
- Comparisons must be fair and meaningful.
- Claims must consider the full life cycle of the product.
- Claims must be substantiated.
Overview of ASA assessment
By way of summary, the ASA has stated that whilst the advertisement could be understood as being an aspirational call for everyone to become more environmentally friendly, it could also be viewed as a broad claim by Innocent that it is an environmentally friendly company.
As viewers could interpret the advertisement as having the latter message, the ASA stated that Innocent would need to be able to back up the implications of such a broad claim, namely that ‘purchasing Innocent products … would have a positive environmental impact’ and that ‘their products had a net positive environmental impact.’
Whilst the ASA acknowledged Innocent’s recent efforts to reduce the environmental impact of their business, these efforts were not able to support the implied meaning and so the ASA judged that the advertisements were misleading.
Potential solutions
At first glance, the ruling could be seen as harsh. However, the CMA mentioned, when publishing the Green Claims Code, it would carry out a full review of misleading green claims. Therefore, it should not be too surprising that the ASA has decided to ban Innocent’s advertisements in this context.
With that said, here are a few suggestions based on two of the Green Claims Code’s key principles that could help businesses avoid falling foul of the rules. These suggestions are not intended to be, nor are a substitute for, legal advice.
Principle 2 – Claims must be clear and unambiguous
Businesses should avoid making general claims that they (or their products) are ‘environmentally-friendly’, ‘green’ or ‘eco-‘. Similarly, businesses should take care and ascertain likely interpretations of their marketing material.
One way to improve the clarity of advertising material would be to consider qualifying claims that are being made by giving specific examples of what the business is doing. For example, if you state that your packaging is now 100% recyclable or you are investing in using green energy in your supply chain, this may help with limiting the possible interpretations of your environmental claims.
Principle 3 – Claims must not omit or hide information
In conjunction with providing examples of what actions are being taken, businesses should also consider facilitating viewers/readers access to further information more easily.
For example, if advertisements are on YouTube or VOD (as in the case of Innocent) then viewers could click on the advertisement directly and be transferred to a website. That would provide viewers easy access to further information. For TV adverts or printed material, business should consider whether to include a dedicated a corner of the screen or a page that says ‘Find out more about our efforts’ and include a QR code to a website. By using a QR code, this would allow TV viewers and readers to access supporting information much easier. Furthermore, this would reduce the possibility that an audience could interpret an advertisement as making broad and unclear claims.
Summary
Overall, the ruling reinforces that businesses and individuals need to be extremely careful when formulating advertising campaigns to avoid sanctions such as the negative publicity of an adverse ASA or CMA decision. It appears that regulators are becoming more vigilant in the area of environmental advertising, and it could be helpful to seek legal advice to ensure compliance.
If you are planning an advertising campaign that relates to the environment or seeks to highlight the environmental benefits of your products or services and would like assistance, please contact our specialist corporate and commercial lawyers on 01753 889995 or email enquiries@bpcollins.co.uk.
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