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This post was written by Alun J. Jones and John P. Feldman.

On January 6, 2010, the UK's advertising watchdog, the Advertising Standards Authority (the ASA), issued a decision upholding complaints it received against a poster that promoted the Finnish airline, Finnair. The poster featured an image of an Airbus flying above Finland's coastline and stated, "Be eco-smart. Choose Finnair's brand new fleet."

Finnair supported its statement on the basis that it had a new fleet of planes and it structured its flight routes with an eye toward increasing fuel efficiency. The ASA did not find that support very compelling. ASA decided that readers were likely to interpret "eco-smart" as analogous to "environmentally friendly," implying that flying Finnair would have little or no detrimental effect on the environment. Furthermore, the ASA required robust substantiation for the fuel efficiency claims beyond Finnair's emissions data. ASA even questioned whether the ad was clear enough in defining the nature of the comparison: Was Finnair comparing its old fleet with its new fleet, or its new fleet with other airlines?

That general environmental claims lead to serious headaches at the ASA is nothing new. Consider the ASA's September 2009 decision upholding complaints against the Malaysian Palm Oil Council's "Palm Oil-The Green Answer" article. But, how specific do you need to go in order to be clear of a "general environmental claim"?

In a decision involving the carrier EasyJet, the ASA reviewed the claim "Because we operate Europe's most modern fleet, our planes emit 30% fewer emissions per passenger mile than traditional airlines. So you can enjoy your holiday safe in the knowledge you'll have done more for the environment than Gordon's taxes ever could." Similar to the Finnair ad, to be sure, but in the case of EasyJet, ASA held that the ad did not mislead consumers into believing that traveling with EasyJet was environmentally friendly. According to ASA, consumers were likely to understand that all airlines would cause environmental damage. There had also been a great deal of press regarding the doubling of Air Passenger Duty by the British government, and the advertisement would likely be read in that context. However, EasyJet based its calculations for the "30% fewer emissions" claim primarily on the number of passengers they could carry in their planes. Because they could carry more passengers than most other airlines, it followed, according to EasyJet, that the CO2 emissions per passenger were 30 percent less. There was no evidence that supported the claim that EasyJet's younger planes had 30 percent fewer emissions per passenger mile. Thus, ASA found the ad to be partially substantiated and partially in breach of the CAP Code.

That ASA hates open-ended, general environmental claims is clear. But, it is too easy to conclude that "green" claims are impossible for industries that are inherently big contributors to greenhouse gases. As the EasyJet decision shows, careful casting of the claim can make a world of difference. In another example, ASA accepted the substantiation of EDF Energy, which promoted itself in conjunction with "Green Britain Day," using the advertising line, "Brought to you by EDF Energy, sustainability partner of London 2012." Even though this advertisement produced far greater public outcry than the Finnair advertisement (149 complaints versus 4), ASA found the promotional line to be permissible.

Why This Matters

Specificity and clarity is the key. All of the relevant guidance in the UK on environmental marketing – the CAP Code, the ICC Code, Clearcast Guidance and DEFRA's Green Claims Code, all of which are informed by the ISO's standard 14021 – make it very difficult to use broad, general "green" claims. Linking vague descriptions, such as "friendly" or "kind" with words such as "eco," "ozone" and "nature," is to be avoided according to the Codes, as is the use of terms such as "sustainable," "green" or "non-polluting." This is in line with the detailed guidance given on the use of some specific terms, such as "biodegradable" and "recyclable" by ISO 14021. 

So, why did Finnair fail when EasyJet flew (in part)? Finnair's use of "eco-smart" was probably just too general and too vulnerable to multiple interpretations. Somewhat ironically, if Finnair had been more comparative in its advertising, comparing the age of its fleet with that of other airlines, and drawing a direct environmental benefit claim from that fact, ASA might have been less critical. The more hard-hitting but specific claim could have given Finnair the cover, whereas the general "eco-smart" claim did not. We often see comparative claims given more leeway than absolute environmental benefit claims, which can be misinterpreted as communicating a greater "green" message than may be intended. And, finally, as the EasyJet and EDF Energy cases suggest, placing an environmental message into a context that touches on current affairs can help to demonstrate that the public is cognizant of the limited environmental message.

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On June 9, 2009, the Federal Trade Commission (“FTC” or “Commission”) testified on its efforts to ensure truthfulness of environmental or “green” marketing claims before the U.S. House Subcommittee on Commerce, Trade, and Consumer Protection of the Committee on Energy and Commerce. Noting the “virtual tsunami” of environmental marketing, the FTC announced it will continue its efforts to ensure that green advertisements are “truthful, substantiated, and not confusing to consumers.” 

In order to protect consumers from unfair or deceptive practices, the FTC explained its multi-tiered approach of (1) issuing rules and guides for businesses, (2) challenging fraudulent and deceptive ads through enforcement actions, and (3) publishing materials to help consumers make informed purchasing decisions. 

The FTC’s Guides for the Use of Environmental Marketing Claims (“Green Guides” or “Guides”), 16 C.F.R. Part 260, are the centerpiece of the agency’s environmental marketing program, according to the testimony. The Green Guides, first issued in 1992 and most recently revised in 1998, help advertisers avoid making “unfair or deceptive” claims in violation of the Federal Trade Commission Act (“FTC Act”) by describing the basic elements needed to substantiate specific environmental claims. While the Guides “provide the basis for voluntary compliance” with section 5 of the FTC Act, “[c]onduct inconsistent with the positions articulated . . . may result in corrective action by the Commission under Section 5 if, after investigation, the Commission has reason to believe that the behavior falls within the scope of the conduct declared unlawful by the statute.” § 260.1.

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The Direct Marketing Association is stepping up efforts to help its members move toward greener marketing practices. The DMA has introduced a “Green Marketing” program, which allows its professionals to earn a certificate in eco-responsible marketing. In addition, the DMA has developed an environmental resource center on its website.

The DMA’s Environmentally Responsible Marketing (ERM) program comprises an 11 course curriculum, which starts with a Dec. 1 online briefing. Courses will be held approximately every month. Topics include:

• Building a long-term sustainable environmental policy or program
• Understanding product and process life cycles
• Green list & data management strategies
• Sustainable design & production
• Paper sourcing, certification, & labeling
• Understanding & calculating the carbon footprint of a marketing campaign
• International trends in green marketing

The DMA notes in its announcement concerning the program that a key goal to the program is to better meet customer expectations, in an attempt to stave off calls for do-not-mail legislation modeled after the federal do-not-call registry.

“Today, marketing strategies need to incorporate responsible environmental stewardship,” said Meta Brophy, who chairs DMA’s Committee on Environment and Social Responsibility, and serves as the director of publishing operations at Consumers Union. She said the DMA’s ERM program is believed to be “the first of its kind in the world of advertising and marketing.”

The faculty for the courses will be drawn from marketing and other professionals from a diverse group of companies and organizations, the DMA said.

In addition to its educational program, the DMA has established an Environmental Resource Center. The center includes a “Green 15 Toolkit,” which contains information and resources to help members understand and comply with the DMA’s Environmental Resolution, passed in May 2007. The latter calls upon members worldwide to implement and benchmark a set of 15 eco-friendly practices.

Why This Matters:  Consumers increasingly are seeking greener solutions to the volume of hardcopy marketing material they receive. The direct marketing industry is under pressure to better target potential customers or face the threat of legislation that limits the amount of direct mail they are allowed to send.

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The UK Advertising and Standards Agency (ASA) has recently published a report in response to an increase in consumer complaints regarding misleading environmental claims in advertisements. Companies and advertising agencies have been accused of "green washing" advertisements - making environmental claims that are less about saving the planet and more about exploiting consumer concerns. Particularly open to challenge are claims about CO2 emission and phrases such as carbon "neutral," "zero" and "negative," and claims about energy sources. A number of companies have recently fallen afoul of the ASA adjudication process by making misleading claims, including Shell Oil, British Gas, Lexus and Ryanair.

One of the biggest problems faced by advertisers is that the definition of "green" is always changing and scientific research can be open to interpretation. Advertisers are further hindered by unclear ASA and Committees of Advertising Practice (CAP) guidance on the subject. The report suggests that both advertisers and the ASA often lack the technical expertise to effectively vet environmental claims.

The ASA Director General has said that the ASA needs to:

1) Ensure that ASA/CAP staff expertise is up-to-date and comprehensive in order to evaluate environmental claims effectively.

2) Ensure the advertising code review process responds to the views of consumers and companies.

3) Investigate whether the CAP guidelines could be more explicit, even if this means that guidelines would need to be fluid because of the fast-evolving nature of science and technology in this sector.

4) Work with advertising agencies and companies alike to bolster technical understanding of issues and existing rules on environmental claims.

To avoid falling afoul of the ASA, and to avoid the costs and negative publicity associated with a negative adjudication, companies and advertisers must be certain when producing and clearing advertisements that environmental claims are accurate and can be clearly justified.

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This forum was written by Avv. Felix Hofer.

1. The European Approach

1.1. Up till now the Europe Union did not issue a set of harmonizing principles and rules meant to specifically govern 'environmental/green marketing'.

The main reason for such approach was not disinterest from the EU's institutional bodies towards the issue, but probably the conviction of being the traditional regulations on commercial communication perfectly suitable to cover this specific area in a sufficient and proper way.

In fact, these provisions had already established a number of basic principles requiring all commercial communication to:

• not be misleading to the targeted public²,
• be “readily recognizable as such and be distinguishable from editorial content” (and all surreptitious promotional messages to be explicitly banned)³,
• not encourage behaviour grossly prejudicial to the protection of the environment⁴,
• not to result in a misleading commercial practice⁵, a result that would occur any time:
  • «it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements..: (a)..the nature of the product, (b) its...main characteristics...such as its availability, benefits, risks, execution, composition, accessories, .. method and date of manufacture or provision, delivery, fitness for purpose, usage, .. or
    the results to be expected from its use»⁶,
  • «it omits material information that the average consumer needs, according to the context»⁷, where «information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material»⁸.

Click here to read more.

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In 2005, General Electric Chairman and CEO Jeff Immelt—in announcing GE’s Ecomagination commitment to address the world’s need for cleaner, more efficient sources of energy, reduced emissions, and clean water—stated that increasingly for business, “green” is green. Today, companies of all shapes and sizes are recognizing that being environmentally conscious and sensitive to the sustainability of our planet not only makes sense for our survival, but is also a business opportunity.

Harnessing these opportunities and understanding how to make them work can require experienced legal counsel.

Reed Smith is positioned to be a partner with companies seeking to turn “green” initiatives into green investments. With its international footprint and nationally recognized renewable energy and advertising practices, Reed Smith can help companies develop their sustainability strategies, as well as execute them and bring them to the marketplace.

Click here to read more.

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The UK’s Advertising Standards Authority has released a report on environmental claims in advertising, which warns advertisers of a dramatic rise in the number of complaints brought concerning such claims.

In 2006, the ASA received 117 complaints regarding green claims in 83 advertisements. In 2007, the agency received 561 complaints concerning 410 ads.

“Independent research commissioned by the ASA in November 2007 indicated a high awareness of green issues and environmental claims in ads. However, it also revealed a high degree of confusion and a lack of basic understanding about claims and what they mean,” stated the report, which was released following a public meeting in June on environmental claims and greenwashing.

“The research also found that those who were the most concerned about the environment tended to be the most knowledgeable and most cynical about what they see as ‘greenwash,’” the ASA said. Claims most commonly challenged were those involving CO2 emissions, such as carbon “neutral,” “zero” and “negative,” as well as absolute claims, such as “100% recycled” and “wholly sustainable.”

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