As the prime selling-season is now upon us we have noticed a significant and interesting trend in relation to brands that are promoting their sustainability credentials – particularly in respect of the make-up of the products themselves – and, who are now looking for legal/compliance sign off on their messaging.

The Competition and Markets’ Authority Green Claims Code has been around since 2021 but both the Competition and Markets Authority and Advertising Standards Authority seem more willing now, than ever before, to act swiftly and conclusively when it comes to brands flouting their respective principles. As a result, we are now seeing more legal teams involved in crafting and de-risking this messaging. These ‘cleaner’, ‘greener’ messages are now being stress tested by both in-house and external counsel as the regulators across Europe chase the consumer zeitgeist around greenwashing.  

The need to substantiate these claims, in principle, is now understood. The level of substantiation required in order to ensure compliance seems still to be a dark art and yet a high level is mandatory now not only to avoid the eye of the regulators but also to avoid being cancelled by the Gen Z audience.  

The legislative framework governing sustainability is constantly evolving:

• As above the Green Claims Code was published in 2021 and provides a framework for businesses to make environmental claims that assist consumers to make informed choices. The Digital Markets, Competitions and Consumer Bill, which is expected in 2024, does not specifically mention greenwashing claims but it is designed to penalise messaging or behaviours that are likely to cause a consumer to take action it wouldn’t have otherwise taken but for the misleading claim – this includes greenwashing claims. Under the DMCC, the Competition and Markets Authority will have far heightened enforcement powers and will surely push this even higher up the agenda
• The CMA has recommended that consumer protection legislation is updated to introduce a number of additional obligations/banned practices relating to sustainability including an express positive obligation to disclose environmental information relating to goods. This remains in discussion
• The UK government’s net zero strategy suggests a new regime might be on its way which would provide consumers with access to verifiable and comparable information about the sustainability of products, for example, by ensuring product labels include information relating to: (i) durability; (ii) a repairability; (iii) recyclability; and (iv) the product’s environmental footprint
• There is a draft Producer Responsibility Obligations (Packaging and Packaging Waste) Regulation which looks to ensure that packaging used on products in England is recycled as far as possible and to raise funds through certain additional costs on retailers to cover the cost of collecting and recycling packaging material.

As the regulations and guidance around these claims continues to evolve, legal teams are being obliged to restrain and pull back the claims of their marketing colleagues. For those without inhouse counsel or the resources to engage outside legal assistance, the best source of guidance in relation to marketing messages is the Advertising Standards Authority. The ASA regularly runs affordable training sessions providing up to date guidance on sustainability messaging, produces helpful advice and resources, offers a Copy Advice service, and publishes its rulings setting out the details of claims that have been found to breach the advertising codes.  

This isn’t straightforward, by any means, and the expectations will continue to change as the expectations of consumers and regulators evolve but the direction of travel is hopefully to a clearer, more manageable set of rules that can be relied upon to ensure compliance.