ASA rules on impact of historic environmental performance on green claims

The question

What does the Advertising Standards Authority (ASA) say about poor historic environmental behaviour in respect of green claims?

The key takeaway

On 10 July 2024, the ASA ruled that ads must not mislead consumers by failing to include material information about an organisation's historic environmental performance. The decision responded to an ad published by Wessex Water, which was in breach of BCAP Code rules 3.1 and 3.2 (misleading advertising) and 9.2 (environmental claims).

The background

In February, Wessex Water released a TV ad about storm overflows; structures designed to relieve pressure on water and sewage systems during periods of heavy rainfall. The ad focused on the company's efforts to upgrade the existing infrastructure, on which it said it was "taking a different path" through such initiatives as "separating rainwater from sewage", "treating wastewater naturally using wetlands", and "monitoring changes to water quality".

The ad was challenged on the basis that the water provider had failed to include substantial information in relation to its historic environmental behaviour, namely its intermittent practice of discharging sewage into the environment. Wessex Water had previously received a two (out of a potential four) star EPA rating by the Environment Agency in 2021 and 2022, designating it as a company in need of improvement. Notably, the organisation was identified as "significantly below target" in respect of the number of serious sewerage and water supply pollution incidents it had been involved in.

The development

Wessex Water disputed that the ads made any environmental claims at all. The ASA disagreed, holding that phrasing such as "a better way for our waterways is already underway", and colourful images of green water sources and wetlands, contributed to an overall impression that Wessex Water was not only taking steps to reduce environmental damage, but that active improvements had already been made.
Given the conflict between this impression and the company's historic pattern of poor behaviour, the ASA upheld the challenge, asking for the ads to be removed on the basis that Wessex Water's history was material information which, as omitted, made the ads "likely to mislead". The regulator prohibited the ads from reappearing in the form complained of.

Why is this important?

This decision is yet another in an ever-growing list of regulatory clampdowns on greenwashing in the UK and EU. It builds on responses in industries such as aviation, fashion and food, reinforcing the need for brands to be clear and precise whenever they make green claims. Critically, it also reminds them to be mindful of their past environmental performance when creating new 'green' campaigns. The ruling also highlights the need for businesses to carefully consider the impression that their ads can create, not only in terms of specific wording but also in terms of their visuals and imagery. 

Any practical tips?

• Qualifications and supporting info: When making specific environmental claims, it is important to include any relevant qualifications and material supporting information – this may include a need to identify and disclose any relevant history of poor environmental performance.
• Stay ahead of the regulator: Businesses need to keep a close watch on green adjudications, commentary and guidance from both the ASA and the Competition and Markets Authority (CMA), including guidance on green claims by the Committee of Advertising Practice (CAP).
• Work in step with the marketing team: Remind all relevant internal stakeholders, especially the marketing team, that green claims are dangerous territory and require legal input from the start. No doubt the last thing Wessex Water thought its new campaign would do would be to shine a light on its poor past (sewage) performance!

Autumn 2024