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The ASA’s “Active Ad Monitoring” AI tool: nowhere to hide for green claims

Published on 25 October 2023

The question

What does the ASA’s targeting of its AI monitoring and targeting tool at green claims mean for businesses interested in spotlighting the role they play in the environment?

The key takeaway

 The ASA is using its Active Ad Monitoring artificial intelligence tool to identify ads that make green or environmental claims, no longer solely relying on complaints made by the public. This highlights just how high a priority the ASA is viewing green claims. More than ever, businesses looking to make green, environmental or sustainability claims should think extremely carefully about how to frame these in a way which complies with what has quickly become a highly, and very tightly, regulated area.

The background

The ASA’s “climate change and the environment” project is well underway. In September 2021, the ASA announced its programme dedicated to cleaning up green advertising, and since then, we have seen a steady stream of activity and guidance. In October 2022, the ASA published its Climate change and the environment – consumer understanding of environmental claims report. It has used the findings from this report to inform its guidance note on misleading environmental claims and social responsibility (see our Snapshot in this Autumn 2023 edition) and launched an e-learning module to help advertisers understand the key principles to bear in mind when making green or environmental claims. The ASA has also been working in partnership with the Competition and Markets Authority (CMA) which published its own Green Claims Code in 2021 and began enforcing it in earnest in 2022 (see our Autumn 2022 Snapshot CMA investigates ASOS, Boohoo and Asda over “greenwashing”).

To support its proactive approach to regulation, the ASA has developed an Active Ad Monitoring system (AAM System) which uses AI to actively seek out and identity ads in “high-priority” areas which may be non-compliant and which flag these to the ASA for “expert review”. So far, we have seen at least four ASA rulings for ads which have been identified for investigation by the AAM System (including the one referenced below). With “climate change and the environment” clearly remaining a hot topic (pun intended) for the ASA, it is no surprise that the AAM System has started to pick up sustainability and green claims.

The development

On 30 August 2023, the ASA published an upheld ruling against 4AIR, a company that provides services that assist businesses operating in the aviation space to meet emission targets and industry standards and implement sustainability initiatives. The ad in question, which was identified by the AAM System, contained claims such as:

  • Eco-Friendly Aviation Future of Sustainable Aviation”, and
  •  Learn How To Turn Flying Into A Force For Good With A 4AIR Rating. Industry-Leading Standard For Sustainability In Private Aviation. Sustainability. Aviation Industry”.

Unsurprisingly, the ASA stated that absolute environmental claims such as these require a “high level of evidence” to substantiate the claims and must be provided from across the entire life cycle of the products and services in question. 4AIR argued that the claims were substantiated by: (i) its service offering which used “sustainable” aviation fuel made from non-fossil fuel sources to reduce carbon emissions by up to 80%; and (ii) donations to a non-profit organisation (set up by none other than 4AIR itself), Aviation Climate Fund, which researches new technologies to support the transition to low-carbon in the aviation industry. However, 4AIR failed to convince the ASA that the high bar for substantiation had been met and so the ASA concluded that the ad was likely to mislead consumers.

Why is this important?

This ruling not only signals (once again) that the ASA’s dedicated project, “climate change and the environment”, remains a high priority but the use of the AAM System also represents a gear change by the ASA. Consequently, we can expect to see a levelling up of enforcement by the ASA in this space – so there really is no place for misleading or unsubstantiated green claims to hide.

Any practical tips?

 Businesses and advertisers looking to make green or sustainable claims, or wanting to refer in some way to the environment, should carefully consider all elements of what is now a substantial amount of ASA guidance as well as the fact that it no longer requires a complaint to be made to the ASA for an investigation to be launched. Before publishing green claims and other advertising or marketing materials that include any environmental credentials, businesses will need to ask themselves the basic compliance questions to ensure they have framed the claim properly. These include:

  • is the claim specific enough, taking into account the full cycle of the product/service, and
  • do we hold robust enough documentary evidence to substantiate the exact claim being made)?

Autumn 2023