The Fox Williams ESG series: Greenwashing claims in the travel industry

Almost half of all travellers are willing to pay more for eco-friendly travel, says Google, and as we know, it’s not just consumer pressure that is impacting the travel industry; the UK Government’s Jet Zero 2050 policy aims to make the aviation industry emission neutral in just under 30 years.

With the impetus for more sustainable travel showing no signs of abating, we will explore, in a series of articles, some of the legal issues that travel companies need to consider when implementing their ESG strategies.

In this first article, we look at greenwashing claims. The UK Advertising Standards Authority (ASA) has recently (June 2023) updated its guidance on environment-based advertising and here we highlight some of the key messages in that guidance for travel businesses.

ASA Guidance

This latest guidance from the Committee of Advertising Practice (CAP) consolidates the ASA’s position on misleading environmental claims and social responsibility. It makes it clear that the guidance is, as ever, just guidance and it isn’t binding.

Many of the points made are not new at all, however the ASA has included some useful nuggets arising from real complaints made by consumers – and upheld by the ASA – across all industries, not just travel. The following are the ones we would highlight:

• The basis of claims must be clear: Environmental claims are likely to mislead the audience if the basis of the claim being made is not clear. Businesses must make sure any environmental claims are clear and do not confuse the audience.
• Know your audience: Companies must consider consumers’ likely interpretation of the environmental claim being made and should not assume a level of knowledge greater than is reasonable or likely from its target audience. Where general claims could be interpreted as absolute claims, or could have multiple possible interpretations, additional information must be added to the advert to make the meaning of the claim clear.
• Adverts must not be misleading: Misleading claims occur where a claim is made about a business’ product/ service/ process/ brand /operations as a whole, or the claim omits or hides information, to give the impression the product/ service/ process/ brand /operation is less harmful – or more beneficial – to the environment than it really is. Going further on this point, the ASA advises that:
  • a specific claim that only draws attention to a particular sustainability benefit, even if it is true, could still mislead consumers if there are significant negative impacts from that product/service, or if that benefit comes at a significant environmental cost.
  • adverts which refer to a business’s lower-carbon activity without including information about its overall harmful environmental impact may provide a misleading impression of the proportion of the business’s overall activities that are lower in carbon.
  • imagery of the natural world may, depending on the context, contribute to the impression that the advertised business is making a significant contribution towards reducing greenhouse gas emissions. Where such imagery is used in connection with a company responsible for a significant amount of emissions or other environmental harm, it is likely to mislead the audience if there is no balancing, qualifying information.
• Aspirational claims: When making claims about initiatives intended to meet net zero, the timeframe to achieve that goal should be stated in the ad because it is likely to be considered material information.
• Don’t go too far: Claims that go beyond aspirational claims and suggest that a business is already taking steps to reduce emissions and have a positive environmental impact are likely to mislead if the ad does not include material information about the balance of the business’ current activities, current emissions and the pathway to reducing these. Claims based on future goals relating to reaching net zero or achieving carbon neutrality should be based on a verifiable strategy to deliver them.
• Evidence, evidence, evidence: Companies must ensure that they hold robust documentary evidence to prove all claims, whether direct or implied, that are capable of objective substantiation.
• Absolute claims (such as “sustainable” or “environmentally friendly”) must be supported by a high level of substantiation. Comparative claims such as “greener” or “friendlier” can be justified if the advertised product /service provides a total environmental benefit over that of the same company’s previous product (or competitor products) and the basis of the comparison is clear.
• Companies must base environmental claims on the full life cycle of the advertised product/service, unless it makes it clear otherwise, and must make clear the limits of the life cycle.  Examples of general claims which are likely to be considered full lifecycle claims are: ‘Good for the planet’, ‘Helping to support a more sustainable future’, ‘environmentally-friendly’, ‘100% eco-friendly’, and ‘zero emissions’.  General claims like these should not be used without qualification.
• Companies have a social responsibility: The ASA mentions a few times that the UK’s Climate Change Committee (and other experts) have emphasised that for the UK (and the rest of the world) to meet net zero targets, consumer behaviour must change. Accordingly, all marketing communications must be prepared by businesses with a sense of responsibility to consumers and to society because advertising plays such a role in influencing consumer behaviour.

Comment

The ASA does not intend this latest guidance to stop companies making environmental claims about their products or services. The aim, they say, is to identify factors that make such claims either more or less likely to comply with the CAP and BCAP Codes.

This new guidance is useful. It is sweeping in parts, as many guidance documents are, but the examples given do provide some useful dos and don’ts from adverts that have already been called out.

The days of grandiose statements about saving the world have largely disappeared from our advertising channels. Now there is a fine line that travel companies must walk to avoid regulators taking action for misleading advertising.

Travel companies must strike the right balance between appealing to the ‘greener’ consumer and being able to substantiate – and we mean really substantiate – any environmental claims it makes to the world.