Earlier this month, the ASA published two significant rulings in relation to environmental claims and drinks packaging. In both cases, the ASA examined whether certain 'absolute' environmental claims had been substantiated and if not, whether the advertising and labelling claims were misleading to consumers. In upholding both complaints, the ASA has shown its intention to continue rigorous scrutiny of marketing material that presents a product as having favourable environmental characteristics.
A central issue in both rulings concerned the interpretation of advertising claims that a product was produced from 100% recycled material. According to the ASA, marketers must take care to avoid making claims based on only part of the advertised product's life cycle as doing so can present a misleading impression of the product's total environmental impact. We consider each ruling below and the impact these decisions may have on future marketing strategies that seek to emphasise positive environmental credentials.
In Pepsi Lipton the ASA considered the claim that a bottle was "100% recycled" would be understood to mean that all components of the bottle were made from 100% recycled materials. Pepsi Lipton tried to qualify this claim by including an asterisk in small text at the bottom of the advertisement, stating that the claim only applied to the bottle and excluded the cap and label. This caveat wording appeared in small letters and according to the ASA, the smaller text would easily be overlooked by consumers.
In assessing potential breaches of the CAP Code, the ASA will assess the overall impression created by a product and in this case, it was held that the advertisement gave the impression that all parts of the bottle were made entirely from recycled materials. The qualification referenced by an asterisk was insufficient to counter that impression. As such, the claims wording was held to be misleading and in breach of the CAP Code.
The Aqua Pura ruling rested on broadly similar facts but concerned a TV advert and as such, was assessed under the BCAP Code. The complaint in this case concerned the wording of four separate claims: (i) “100% recycled”; (ii) “100% … recyclable bottle”; (iii) “eco-friendly cap”; and (iv) “it’s nature friendly”.
In the UK, television and other broadcast advisements require pre-approval. 'Clearcast' provides this service to broadcasters by advising on BCAP Code compliance. As such, they provide an important pre-screening service to advertisers.
However, clearance by Clearcast does not mean that an advertisement automatically complies with the BCAP Code. In the Aqua Pura case the ASA disagreed with several of Clearcast's findings and reached the conclusion that certain claims did amount to misleading advertising.
On the first complaint (and aligned with the ruling in Pepsi Lipton), the ASA held that consumers would understand the first part of the claim "100% recycled” would be interpreted to mean that all components of the bottle, i.e. the bottle, cap and label, had been made using 100% recycled materials and could all be recycled.
Regarding the claim "100% …recyclable bottle", Aqua Pura did lead evidence that all components of the product were capable of being recycled. This evidence was accepted and so the claim that 100% of the product was recyclable was allowed.
On the third claim, the ASA concluded that the continuation of the claim with the wording “... with eco-friendly cap*” was ambiguous in its meaning and might be understood by consumers to mean that the cap was 100% recycled and recyclable, and that there was an additional environmental benefit provided by the cap.
Finally, the fourth claim "nature friendly" was also held to be an absolute claim and required substantiated evidence to demonstrate that the Aqua Pura brand and full life cycle of the products had a positive impact on the environment.
The cap and label of the Aqua Pura bottles were made from 'new' plastic and according to the ASA, those component parts of the product were inherently harmful to the environment. Indeed, the claim 'nature friendly' was held to be misleading on the basis that it had overstated both the environmental benefit of the brand and the production process.
It is interesting that the ASA went further and commented on the substantiation required to demonstrate environmental impact for both the production process for a specific product and the company brand. This suggests that the ASA would consider the substantiation of environmental impact not only in terms of the life cycle of the product corresponding to the advertising claims but also based on the overall environmental impact of the company itself.
What can be learned from these recent rulings?
As we discussed in our previous blog, it is clear that the ASA is consistently applying a robust and careful scrutiny of environmental claims presented by companies when advertising their products or services.
The recent rulings in Pepsi Lipton and Aqua Pura demonstrate that the ASA is placing a high level of scrutiny over advertisements of products that claim to be environmentally friendly. When preparing advertisements or labelling content, marketers should take into consideration these recent ASA rulings as well as the latest ASA guidance and CMA guidance on environmental claims (click here for our recent commentary on the latest CMA Guidance).
In particular, marketers should:
- Be prepared to substantiate 'absolute' claims;
- Be explicit if a claim covers a specific component of a product and ensure any qualification is clear and legible, not hidden away from the claims wording;
- Consider the entire lifecycle of a product i.e. was the entire product made from recycled material or only select component parts; and
- Consider supply chain diligence – can your suppliers of raw materials demonstrate compliance/ certification to the standards that you are claiming i.e. PET content? What evidence are you maintaining of these claims?
How can we help?
As sustainable, environmentally friendly products and services become more important to consumers, marketing around green claims will become more closely regulated by the CMA and ASA. At the same time, businesses need to look at their supply chain arrangements, including diligence and ongoing auditing and accompanying contractual provisions.