Food and Beverage sector warned against Greenwashing

7th October, 2022 by Robert Starr

Modern consumers are far more discernible when it comes to the impact their shopping habits may have on the planet. It is now commonplace for consumers to choose products, brands or services which purport to be sustainable and environmentally friendly. In many instances, consumers are also willing to pay more for products which they perceive to be greener than comparable alternatives.

To capitalise on these consumer needs there is, understandably, an increasing trend of businesses emphasising their green credentials. In doing so, businesses must be careful that, when making any green claims, they are not misleading consumers by greenwashing.

What is greenwashing?

Greenwashing is the practice of making exaggerated claims about the environmental credentials of a business including the environmental impact or sustainability of products and services it offers.

In recent years, occurrences of greenwashing have increased significantly. Recently the Competition and Markets Authority (CMA) conducted an investigation into greenwashing claims following a raft of consumer concerns and heightened recognition of the issue. It found that from the instances it considered, around 40% of the claims made to consumers could be properly labelled as misleading.

Common greenwashing mistakes include:

Making claims that products are good for the planet (in other words have a positive environmental effect) or describing products as ‘eco’ (or eco-friendly) where those making the claims could not demonstrate through the entire lifecycle of the production and supply process that the product was in fact eco-friendly or was good for the environment
Describing products as either ‘sustainable’ or ‘recyclable’ when only parts of their products could be demonstrated as such
Use of unfair comparisons by describing products as ‘greener’ but without any clear evidence of what it was being compared against

In September 2021, the CMA produced guidance to help businesses comply with their legal obligations in relation to environmental claims. What has come to be referred to as the Green Claims Code (the Code) aims to protect consumers from being misled but also protects compliant businesses from unfair competition by ensuring a level playing field. Though it is only guidance and therefore not legally binding, the consumer protection laws that lie behind the Code can be enforced through both civil and criminal means. It is therefore important that businesses comply with the Code.

The Code is founded on six key principles:

Claims must be truthful and accurate – they must not mislead consumers by giving an inaccurate impression even if the claims are factually correct
Claims must be clear and unambiguous – vague or general statements of environmental benefit can confuse consumers and are more likely to be misleading
Claims must not hide or omit relevant information – thought should be given to the overall presentation of the product as well as the whole life cycle of the relevant product
Comparisons must be fair and meaningful – they cannot say or imply that something is greener if it is not. Further, products compared should meet the same needs and be intended for the same purpose
Claims must consider the entire lifecycle of the product – for example stating a product has a 33% lower carbon footprint but then in the small print excluding transportation is likely to mislead consumers
Claims must be substantiated – given that they must be truthful and accurate, businesses should retain evidence to support and prove their claims.

Enforcement action can be taken against businesses for failure to comply with the Code and/or as a consequence, consumer protection laws. The CMA has a range of enforcement powers at its disposal including the requirement for businesses to provide binding undertakings; enforcement orders; and introduction of enhanced consumer protection measures. In addition, the CMA can refer matters on to Trading Standards officers to investigate and prosecute any alleged criminal breaches of, for example, the Consumer Protection from Unfair Trading Regulations 2008 which could result in unlimited fines and imprisonment.

In addition to, or as an alternative to other enforcement measures, the Advertising Standards Agency (ASA) can rule on greenwashing claims appearing in promotional material. It has the power to demand removal or amendment of any marketing claims that are in contravention of the Code. ASA rulings are published on their website and can cause significant reputational harm, particularly when picked up on by local or national press.

Many household names in the food and drink sector have already fallen foul of ASA greenwashing rulings including:

Dairy free milk brand Alpro for a poster campaign for its oat milk which ran on the sides of busses in October 2020. The ASA took issue with the vagueness of the brand’s claims that its oat milk was ‘good for the planet’ and also text which stated “Next stop. Your recipe to a healthier planet”. The ASA had concern over the lack of context and qualification in the claims made and does not distinguish between its products which have a net positive impact on the environment compared to those that are less detrimental to the environment than others. It was suggested in Alpro’s case that just because oat milk was less harmful than dairy alternatives, it did not necessarily mean it was ‘good for the planet’. The ASA held that the campaign was misleading and was in breach of the Code. Alpro was prohibited from running the adverts in the same form in the future and advised to tighten up its environmental claims.

Tesco, who recently made national headlines for claims (in broad terms) that its plant based products were better for the planet. The ASA ruled against Tesco deeming that this claim was not substantiated and banned all TV, radio and press adverts for the products. The ASA accepted that, in general terms, a plant-based diet could help consumers reduce their overall environmental impact. However, in the context of the plant-based burgers (around which the adverts were based) Tesco did not have knowledge of the full life cycle of the product’s complex production processes and could not therefore demonstrate its product had a lesser environmental impact than a meat-based alternative.

Pepsi Lipton, has also come under fire from the ASA for their advertising headline ‘Deliciously Refreshing, 100% Recycled*’ on a poster for Lipton Ice Tea. The asterisk linked to qualifying small print at the bottom of the poster which stated that the ‘100% recycled’ statement applied to the 500ml bottle (i.e. not the cap and label). The ASA ruled that despite the qualification, the advert was, amongst other things, misleading to consumers as the qualification countered the overall impression made by the advert. Pepsi Lipton was prohibited from using the advert in the same form again.

To reduce the prospect of adverse publicity and legal action over potentially misleading consumers, it is essential that businesses and their marketing teams carefully consider the Code before making any green claim. The CMA has made it clear that greenwashing will not be tolerated and has even gone so far as to threaten naming and shaming serial offenders.

For more information from Howes Percival’s Regulatory team, contact Robert Starr on 01604 222122 or at [javascript protected email address].

The information on this site about legal matters is provided as a general guide only. Although we try to ensure that all of the information on this site is accurate and up to date, this cannot be guaranteed. The information on this site should not be relied upon or construed as constituting legal advice and Howes Percival LLP disclaims liability in relation to its use. You should seek appropriate legal advice before taking or refraining from taking any action.

Food and Beverage sector warned against Greenwashing

What is greenwashing?

Common greenwashing mistakes include:

The Code is founded on six key principles:

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