With just over two months of decisions in 2022 from the ASA (the UK Advertising Standards Authority), interestingly, but unsurprisingly, SESG issues, as raised by consumers and campaign groups alike, feature in many of the ASA’s decisions and news articles.
The new CAP guidance issued in December 2021 (The environment: misleading claims and social responsibility in advertising) provides some useful examples to flesh out the BCAP and CAP rules in this area. Nevertheless, in several of the recent decisions it is apparent that Clearcast have concluded claims do comply with the BCAP rules and yet the ASA has reached a different conclusion. This is consistent with the complexity and nuances pertaining to this area. That said, the proportion of informally resolved cases versus adjudications is striking and demonstrates the importance of being proactive in the face of a potential ASA complaint.
Of the decisions in this area in 2022 so far, here are some key issues / pointers (including, in particular, claims that have been found to be misleading or otherwise in breach of the codes, of which brands should take note, to avoid any suggestion that they are "greenwashing").
- Sustainability and the environment
- Claim clarity and need for accompanying evidence to support consumer's understanding of the claim – in the Oatly milk decision (the “Need Help Talking to Dad about milk” campaign), one of the claims was as follows: “Oatly generates 73% less CO2e vs. milk”. There was then a link to the report where consumer could read which products were included in the comparison. Critically from the ASA's point of view, there was no mention of which Oatly products the formed the basis of the comparison in the ad itself. The ASA held that consumers would understand the claim as a claim against all Oatly products and the evidence needed to support this much broader claim. Oatly had obviously gone to great length to seek to substantiate the claim (including commissioning CarbonCloud, an independent product life cycle assessment expert, to calculate emissions of versus whole cow’s milk), but the report only compared the Barista Edition oat milk and this was not clear from the claim unfortunately.
- Importance of the full life cycle comparison with environmental creds – claims must be about the full product life cycle (i.e. manufacture through to disposal) unless you make it clear that your claim is not such a claim and the limits are clear. Interestingly, in the same Oatly decision, this issue seemed to go both ways. They claimed “The dairy and meat industries emit more CO2e than all the world’s planes, trains, cars, boats etc., combined....Go to oatly.com/helpdad”. This was found to be misleading because the report relied upon had considered different parts of the life cycles for these two different industries but there was no qualification of this nature. However, their first claim noted above (73% less), did include the qualification “from grower to grocer” and Clearcast noted that Oatly Barista milk and whole milk both compared the same part of the life cycle and the “claim made clear the comparison and therefore did not require absolute cradle to grave data.” The ASA didn’t comment on this point to explicitly confirm their agreement, but this analysis by Clearcast seems a fair conclusion to reach given the rules do allow you to make clear if you are not comparing across the full life cycle.
- Importance of sources and not overstating the evidence - again in the Oatly decision, one of the claims was only substantiable with one opinion and they had omitted the word “probably” from the claim and arguably made it sound like a widely held view (the facts were that one climate expert had said “A vegan diet is probably the single biggest way to reduce your impact on planet Earth” whereas the ad said ““Climate experts say cutting dairy and meat products from our diets…”
- Aspirational calls to action can be risky – calls to action to promote positive environmental action, may, even if branding is kept to a minimum, be interpreted by the ASA as drawing a “strong association” between the brand and “a positive impact on the environment” leading them to conclude that many consumers would interpret it as meaning purchasing a brand’s product would have a positive environmental impact which would need to be supportable on the available evidence (albeit the ASA acknowledged some consumers may interpret such a claim as a general call to action). This ASA commentary is a useful indication of the ASA’s potential stance (noting that each case will be fact and context specific) on calls to action and shows that brands can be considered to be making claims even when they clearly intend not to do so and even where they do have environmental credentials to drawn upon e.g. having a B Corp certification. It also forms part of a more interesting debate around the scope of the CAP code and what can be said to fall outside of the CAP code given it is not supposed to cover e.g. pure PR or editorial content.
- “100% recycled & recyclable bottle claims – these claims continue to be an issue. A decision relating to Aqua Pura (Roxane Ltd) at the end of January add to this statement with “with eco-friendly cap*” i.e. “100% recycled & recyclable bottle with eco-friendly cap*” with the intended meaning that only the bottle was 100% recycled/recyclable. This additional text was considered ambiguous and the ASA expected to see evidence that all components were made of 100% recycled material when they were not; as such it was not substantiated and misleading.
- “eco-friendly” – beware of making absolute claims – whilst “friendlier” can be justified by showing a product’s benefits over a previous product or competitor product, “eco-friendly” was interpreted in the above decision relating to bottles as an absolute claim i.e. needing to be supported by a high level of substantiation and based on a full life cycle of the product.
In September last year, the ASA announced a series of enquiries into specific issues, notably the issue of waste including e.g. recycling in Spring 2022 and the issues of food sustainability issues later this year so we should expect to continue to see the spotlight being shone on these issues.
2. Social responsibility
The other key SESG issue is the “social” limb given the guidance and reports that have been published this year:
- Depicting older people in ads – guidance has been published in February (see here and here) in relation to the CAP code. The guidance focuses, in particular, on the scope of what causing serious or widespread offence means, emphasising that humour can be problematic and won’t prevent offence. The point in relation to humour is not a new one and was something also picked up in the racial and ethnic sterotyping review discussed below. There are also references by the ASA to further third party guidance that brands may wish to consider.
- Racial and ethnic stereotyping - Back in December 2020, the ASA began reviewing its previous decisions relating to ads depicting racial and ethnic stereotyping and to seek evidence on this issue more broadly. This was to consider whether the ASA was getting this issue right in its decisions. In May last year, I wrote an article about this investigation and set out the key issues, which can be found here.
The long awaited results of the review were published last month. The summary of the report is available here. I will be aiming to attend the ASA’s session in the upcoming weeks where they will be talking through the results and to update further on this topic then.
In the meantime, it is interesting to draw parallels with the gender stereotyping in advertising review. Readers may remember that a new gender stereotyping rule was introduced in 2019 following a similar review of this nature. As such, it seems likely that at the very least, we can expect more detailed guidance in this area.