UK: New Advertising Standards Codes for UK to Crack Down on Green-Washing

Communications, Media and Technology Updater

Following a comprehensive review and public consultation on its proposals for a new advertising code, the Committee of Advertising Practice (CAP) and Broadcast Committee of Advertising Practice have published new advertising rules which will come into effect on 1 September 2010. This is the first time in over eight years that the Codes have been reviewed in their entirety and the first concurrent review of broadcast and non-broadcast Codes.

While the new rules continue to be based on the enduring principles that "all ads should be legal, decent, honest and truthful" the key changes that advertisers need to be aware of include:

  • a new single Broadcast Advertising Code for TV and radio will replace the existing four Codes, with the rules set out in a clearer format, making it more user-friendly and consistent;
  • an over-arching social responsibility rule for TV and radio has been introduced that will afford greater protection to consumers. Other consumer protection rules have been revised including the clarification of the use of "free" in marketing communications and the rules governing sales promotions;
  • enhanced protection for children by way of a new scheduling rule for TV and radio which keeps ads for age-restricted video games away from children's programming and strengthened data protection rules for children, to prevent marketers collecting data from under-12s without parental consent; and
  • the introduction of an explicit rule in the environmental section of the non-broadcast Code preventing marketers from exaggerating the environmental benefits of their products and (new for TV) an environmental claims section in the Broadcast Code, bringing the requirements for TV into line with those already in existence for the radio and non-broadcast Codes.

Arguably, the most significant change will be the introduction of the new rules regarding environmental claims made by marketers in an attempt to cut down on "greenwash", where companies exaggerate their products' environmental credentials. The "rules" have been drafted in such a way to set out general principles rather than specific rules. While marketers are still required to take account of Government guidance including the Green Claims Code (published by DEFRA and BIS) when making a "green claim", from 1 September 2010 they also need to ensure that any marketing involving environmental claims takes into account the following new rules:

  • the basis of any green claim must be made clear. Unqualified claims could be held to be misleading if material information is omitted, with the ASA able to ban any advertisements which it considers misleading;
  • marketers must make clear to the consumer the meaning of any terms used in marketing communications;
  • any absolute claims as to environmental benefits "must be supported by a high level of substantiation". Comparative claims such as "greener" or "friendlier" can be made if these can be justified - the advertised product must provide a total environmental benefit over that of the marketer's previous product or competitor's products and the basis of the comparison must be clear;
  • any environmental claims must be based on the full life cycle of the product (unless the marketing communication states otherwise) as well as making clear the limits of the life cycle;
  • marketers may only suggest that their claim is universally accepted if there is no significant division of informed or scientific opinion as to the claim being made;
  • if a product has never had a demonstrably adverse effect on the environment, marketing communications must not imply that the formulation has changed to improve the product in the way claimed. They may, however, claim that a product has always been designed in a way that omits an ingredient or process known to harm the environment; and
  • marketing communications must not mislead consumers about the environmental benefit that a product offers. Specific examples given in the Code include highlighting the absence of an environmentally damaging ingredient if that ingredient is not usually found in competing products or by highlighting an environmental benefit that results from a legal obligation if competing products are subject to that legal obligation.

The new Codes are available at Committee of Advertising Practice.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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