Greenwashing guidance Supporting businesses with green claims legal advice and support

Our expert team have had recent experience of working with clients to help review their existing green claims, as well as in the provision of green claims guides and training to marketing teams and boards of directors. We have also supported clients who have challenged green claims being made by their competitors, including recently acting for a client advising on the legal remedies available to it concerning a competitor’s major advertising campaign that was alleged to constitute “Greenwashing”. We consulted leading Kings Counsel and considered the scope for seeking interlocutory injunctive relief. We closely monitored the competitors green advertising campaign and advised the client on the merits of a reference to the Advertising Standards Authority. Our in house ESG capabilities meant we could assist the client with the complex technical and legal issues arising particularly in respect of PAS 2060 and ISO 14067 (concerning the carbon neutrality claims of products). We also supported the client with its own project to attain accreditation against PAS 2060 in respect of the carbon neutrality of its own products.

Practical guidance in relation to greenwashing claims

What amounts to a 'green' claim?

According to the Competition and Markets Authority (CMA), an environmental or ‘green’ claim is one that suggest a product, service, process, brand or business is better for the environment. Included are claims that suggest or create the impression that a product or a service:

• has a positive environmental impact or no impact on the environment;
• is less damaging to the environment than a previous version of the same product or service; or
• is less damaging to the environment than competing goods or services.

Being legal, truthful and fair

The general guidance is that any advertising should be legal, decent, honest, truthful and fair. In relation to green claims, more specific guidance provides that:

• the basis for any claim must be clear (so you need evidence/data to support your claim) and should not omit key information;
• it is especially important to be clear as to whether any claims relate to all or just part of a product or services lifecycle. If only part, then this must be set out clearly;
• the meaning of terms used must also be clear (avoid any ambiguity). They should be transparent, straightforward and easily understood — would the person on the street know what you mean?;
• do not exclude or hide any relevant information which is relevant to the decision-making process of the buyer;
• absolute claims are hard to make and must be supported by very clear evidence e.g. ‘greenest’, ‘friendliest’, ‘no environmental impact’, ‘completely recyclable’ or the use of terms ‘most’ or ‘best’;
• businesses need to be especially careful when making comparisons with a competitor’s products — such claims are often very hard to substantiate as the business making such a claim will not have access to all the information they need about a competitor’s product or service to enable them to properly substantiate the claim being made. That is opposed to a business using the terms ‘greener’ or ‘friendlier’ when making comparisons with its own products;
• it is important to be aware of accepted scientific opinion — do not claim that something is universally accepted if the science is not conclusive;
• you cannot suggest that a product against which a comparison is being made was in fact more harmful to the environment than it was to artificially enhance the perception of the new product or service;
• you must be careful when making claims about the benefit of a product or service — for example, product X does not include ingredient Y, when ingredient Y would not normally be present anyway, or if it cannot be used because of a legal obligation that prevents its use; and
• note that there are specific legal requirements that apply to the labelling of certain products, e.g., products that consume energy.

Falling into the greenwashing trap

• ‘Natural’ — can all of it be said to be natural — the product, its packaging?
• ‘Organic’ — is the whole product organic or just part of it?
• ‘compostable’ — can it be composted at home, or does it need to undergo an industrial composting process?
• ‘Recyclable’ — is it the whole product or part of it?
• ‘Eco-friendly’ with no further information — on what basis? In comparison to what?
• ‘Zero-carbon’ — is the product carbon neutral? What is the scope of the statement? Is any offsetting involved?

Avoiding greenwashing claims

• following the guidance above and applying a common sense approach to any environmental claims — if you are not sure and it does not feel right, do not say it;
• ensuring any claims are properly substantiated — keep a paper trail and maintain any supporting evidence;
• keeping any claims under constant review — the environmental landscape is constantly changing and an accurate claim one day might not be accurate the next; and
• seek expert technical and legal advice if you are unsure.