New advertising guidance released on Green Disposal Claims

The question

How do advertisers ensure that their green disposal claims are compliant with advertising rules?

The key takeaway

With green claims still top of the agenda for the ASA, its latest specific focus is on claims relating to the “green” disposal of products. Advertisers must take steps to ensure that claims relating to the disposal, composability, or recycled nature of a product are clear in their meaning and that such claims can be backed up by robust substantiation.

The background

In November 2023, the ASA released findings from its consumer research review into green disposal claims (the Report). Among the key findings were concerns around the true meaning of terms such as “compostable” and “biodegradable”, and how consumers generally assume such claims to be true, without any scrutinization. There is now a call for increased transparency around issues such as the time it takes for products to degrade, and clearer messaging around which parts of a product may be recycled.

CAP and BCAP have updated its general green claims guidance note “The environment: misleading claims and social responsibility in advertising” (the Guidance) on the applicability of their respective rules to claims made by companies over green disposal credentials. The Guidance seeks to address the key concerns raised by the Report, and support advertisers’ compliance with the rules on making environmental (including green disposal) claims in advertising.

The development

The Guidance adds clarity on the applicability of CAP rules 11.1 and 3.3 and BCAP rules 9.2 and 3.2 to green disposal claims. Under these rules, ads must not mislead the consumer by omitting, hiding or presenting information in an unclear, unintelligible, ambiguous or untimely manner. In relation to claims around green credentials in particular, the basis for environmental claims must be clear and could be misleading if they omit significant information.

To avoid misleading consumers, the Guidance confirms:

• where terms such as “recycled” or “recyclable” are used, ads should clearly state which part of the product or packaging the claim relates to. To that end, advertisers should not refer to a product as being fully or 100% recyclable unless all components of the product are indeed recycled;
• advertisers must consider what the average consumer’s expectations are when it comes to the process of disposing the product. Where the steps required to dispose of the product are significantly different to the usual average consumer disposal process (eg requiring a specific scheme or method of recycling), then ads will only comply if such processes are made clear;
• in relation to compostable products, ads should be clear around whether the product can be composted domestically or if they require industrial processes, as this may affect a consumer’s decision to purchase the product;
• where multiple claims are made about one product, the ad should be clear about which claims relate to which part of the product;
• where a biodegradability or compostability claim is made, advertisers should consider stating the time it takes for the product and packaging to biodegrade or compost, as this is likely material information to consumers;
• products that may release harmful by-products during the disposal process should state this;
• claims such as “with 70% less plastic”, are likely to be misleading if they relate to the composition of the product, but not the method of disposal; and
• as ever, in accordance with CAP rule 11.3, advertisers should be able to substantiate their claims, and should hold robust documentary evidence in place prior to making the claims.

Why is this important?

The Guidance acknowledges and tackles the confusion consumers often feel in relation to the disposal of products and their packaging. It seeks to neutralise the risk of misleading claims around disposal of products – given that such claims have an ever-increasing influence on consumers’ purchasing decisions in this day and age.

The ASA has given advertisers a grace period of until the end of March, but from 1 April 2024 will begin proactively investigating misleading green disposal information, with a particular focus on unclear and/or unsubstantiated claims. We can expect to see rulings beginning to be published on this topic shortly thereafter.

Any practical tips?

Whilst the Guidance is not legally binding, given its detailed and specific nature (and the fact that green claims remain a hot topic for both the ASA and the CMA), advertisers will want to refer to – and follow – the relevant sections of the Guidance prior to making claims in relation to their products and packaging’s recycled content and disposability (including biodegradability and compostability).

Spring 2024