Consumers are increasingly demanding products and services which minimise harm to, or have a positive effect on, the environment. As a result, there has been a proliferation of products, services and businesses which claim to meet that demand. Consumer protection law does not prevent businesses from making environmental claims about their products and services, provided they do not mislead consumers. It provides a framework for businesses to make environmental claims that help consumers make informed choices. Consumer protection law therefore gives consumers important protection in relation to environmental claims.
In protecting consumers from misleading environmental claims, consumer protection law also protects businesses from unfair competition. It creates a level playing field for those businesses whose products genuinely represent a better choice for the environment and who can make truthful environmental claims. In addition, there is separate legislation which directly protects businesses from misleading marketing.
The law also therefore has the effect of encouraging businesses to invest in the environmental performance of their products. It enables businesses to communicate these genuine efforts to consumers transparently and to reap the commercial benefits.
Environmental Claims
Environmental claims are claims which suggest that a product, service, process, brand or business is better for the environment. They include claims that suggest or create the impression that a product or a service:
- has a positive environmental impact or no impact on the environment;
- is less damaging to the environment than a previous version of the same good or service; or
- is less damaging to the environment than competing goods or services.
Environmental claims may concern the impact on the environment in general or on specific environmental aspects such as the air, water or soil. Environmental claims can be explicit or implicit. They can appear in advertisements, marketing material, branding (including business and trading names), on packaging or in other information provided to consumers. All aspects of a claim may be relevant, such as:
- the meaning of any terms used;
- the qualifications and explanations of what is said;
- the evidence that supports those claims;
- the information that is not included or hidden;
- the colours, pictures and logos used; and
- the overall presentation.
Environmental claims are genuine when they properly describe the impact of the product, service, process, brand or business, and do not hide or misrepresent crucial information. Misleading environmental claims occur when a business makes claims about its products, services, processes, brands or its operations as a whole, or omits or hides information, to give the impression they are less harmful or more beneficial to the environment than they really are.
Consumer protection law covers what businesses say, and how they present it, and what they fail to say, about the environmental impacts or credentials of their goods, services, brands and activities. The CMA’s view is that, in practice, the effect of the law is that businesses must ensure that their environmental claims:
- are truthful and accurate;
- are clear and unambiguous;
- do not omit or hide important;
- compare goods or services in a fair and meaningful way;
- consider the full life cycle of the product or service;
- are substantiated.
- Businesses making, or considering making, environmental claims need to:
- comply with any sector- or product-specific laws that apply to them or their products and services
- read this guidance and ensure that they are complying with their consumer protection law obligations
- consider carefully whether they need to make changes to their practices
- make any changes necessary to comply with the law, such as:
- stopping making false or deceptive statements
- amending claims to ensure they are compliant
- ensuring they have the evidence to substantiate claims
- ensuring they give consumers the information they need to make informed choices
If in doubt about what it needs to do, a business should seek its own independent legal advice on the interpretation and application of consumer protection law. Businesses can also speak to their Trading Standards Service for advice, for example as part of a primary authority relationship.
Clear and Unambiguous
Claims should be worded in a way which is transparent and straightforward so consumers can easily understand them. They should not be presented in ways that are liable to confuse consumers or to give the impression that a product, service, brand or business is better for the environment than it is. Vague and/or general statements of environmental benefit are more likely to be misleading. At best, they can have a number of meanings that can confuse consumers and make it difficult for them to make informed decisions. At worst, they can give the impression a product, service, process, brand or business is better for the environment than is really the case. They can also be difficult to substantiate.
Businesses are increasingly recognising the importance of improving the environmental effects of their products, services and practices. However, claims about future goals should only be used for marketing purposes if the business has a clear and verifiable strategy to deliver them. Wider environmental goals of the business should also be clearly distinguished from product-specific claims.
Claims about a business’s environmental ambitions must also be in proportion to its actual efforts. They are less likely to be misleading when they are based on specific, shorter term and measurable commitments the business is actively working towards. Where any benefits or impact would accrue over a longer period, that would need to be made clear, as there is more risk of consumers being misled if that benefit or impact is not immediate.
What claims don’t say can also influence the decisions consumers make. Claims made by businesses must not omit or hide information that consumers need to make informed choices. These sorts of omissions can occur where claims focus on saying one thing but not another, or where they say nothing at all. It is vital that businesses pay close attention to the information on environmental impacts that consumers need to make decisions and reflect that in the claims they make.
Consumers can be misled where claims do not say anything about environmental impacts. This can also happen where claims focus on just one aspect of a product, service, brand or business. They can be misleading because of what they do not include or what they hide.
A problem can also arise when a business makes important claims about things like net zero or carbon neutrality targets. Given the difficulties that consumers have in understanding these terms, it is important that claims are as clear as possible. Businesses should be clear about what they are doing and how they are doing it. They should ensure that they use the correct terminology. They should include accurate information about whether (and the degree to which) they are actively reducing the carbon emissions created in the production of their products or delivery of their services or are offsetting emissions with carbon removal.
In particular, where they are off-setting, businesses should provide information about any scheme they are using (which should be based on recognised standards and measurements, capable of objective verification). If not, consumers could be misled into thinking that products or processes themselves generate no (or few) emissions, when this is unlikely to be the case.
Where it is necessary to include important qualifying information about a claim, that information should be easily identifiable and clear. It should also be sufficiently close to the main aspects of the claim for consumers to be able to see it easily and take account of it before they make any decision. The less prominent any qualifying information is, and the further away it is from any main claim being made, the more likely the claim will mislead consumers.
Before making claims, you should ask yourself what environmental impacts my product, service, process, brand, or business have (positive and negative, taking account of its whole life cycle). When thinking about making any sort of environmental claim for your product, for example, you should consider the overall impact of all its components. Cherry-picking beneficial aspects and highlighting those on any packaging or in any advertising for the product risks misleading consumers, particularly if other aspects cause a greater or significant negative impact on the environment.
It is important for businesses to think about whether other components or ingredients of products and services, or other aspects of their business, are less beneficial, or even harmful, to the environment. Providing an unbalanced picture of the overall environmental impact is liable to involve misleading omissions. Depending on the way a claim is made, there may be some limitations on the amount of information that can be included. That does not, however, give businesses a justification simply to miss out or hide important information about environmental impacts.
A business may only omit information where it is impossible for them to include everything consumers need to know in the form of communication used. To assess whether a business has omitted material information, the information that is included and the measures the business takes to provide easily accessible further information elsewhere will be taken into account. Businesses must therefore think about how else they can provide important information to consumers in good time before they make their decisions and make sure it is readily available.
Substantiated
Most environmental claims are likely to be objective or factual claims that can be tested against scientific or other evidence. Given the requirement that claims must be truthful and accurate, businesses should have evidence to support them.
Some advertising claims can be purely subjective or hyperbole. In those cases, consumers may recognise them as such or treat them as advertising ‘puff’ that they do not take literally. Consumers are unlikely to expect those claims to be based on particular evidence. The claims businesses commonly make about environmental impacts are likely to be different. They are likely to relate to ascertainable matters that can be assessed against the scientific or other evidence.
Businesses should therefore be able to back up their claims. They should hold robust, credible, relevant and up to date evidence that supports them. Where they compare their products or activities to one or more competitor’s, that evidence should cover all of them. When investigating potentially misleading claims, the CMA or other enforcers can seek evidence from businesses to support their claim(s). If enforcement action ends up before the courts, the courts can require a business to provide evidence of the accuracy of claims. If a business does not provide it, or it is inadequate, the court may consider the claim inaccurate.
Environmental claims which are made with no regard to whether the business actually knows there is evidence to support them are also likely to be problematic, even if they turn out to be true. The nature of most environmental claims means consumers are likely to expect them to be based on supporting evidence. Where they are not, businesses are likely to have fallen below the standards of diligence and care consumers are entitled to expect of them.
If a business does not comply with consumer protection law, the CMA and other bodies, such as Trading Standards Services, can bring court proceedings. In some cases, businesses may be required to pay redress to any consumers harmed by the breach of consumer protection law. The ASA could also take action against misleading advertisements that contravene the CAP or BCAP Codes. The CMA works closely with concurrent enforcers and with the ASA. In line with our usual practice, we will consider which authority is best placed to act, when taking decisions about enforcement action on misleading environmental claims. Businesses may also face legal action from consumers, who can bring legal proceedings in response to a business’s conduct or seek redress in the courts for certain breaches of consumer protection law.