ASA rebuts accusations it’s not fit for purpose against greenwashing

In the UK, the Advertising Standards Authority (ASA) is responsible for ensuring that ads adhere to its code of practice and guidelines. To eliminate greenwashing from advertising, the ASA has made several updates to its guidelines on green claims.

The latest, in June of this year, included a ban on claims of carbon neutrality or ‘net zero’ without substantiation – particularly where claims were based on carbon offsetting.

• No more greenwashing by omission: UK ad regulator reveals stricter code

But this week, advertising industry pressure group Badvertising released a report that claimed the ASA is not being tough enough in its ambitions to deliver an effective regulatory framework.

What does the report say?

The research claims that of the 21,110 cases of complaints made to the watchdog in 2022, 503 of them were of an environmental nature.

It goes on to assert that 438 (87%) were not investigated as they were deemed by the ASA to either fall outside of its remit or failed to raise any issues that risked breaching advertising codes.

Out of the remaining ‘actionable’ 65 complaint cases investigated by the ASA, 49 were informally resolved (when the advertiser agrees to remove or amend a claim) and 16 were formally resolved.

Of these 16 formally resolved complaint cases, 12 cases were upheld (18.5% of actionable environmental complaint cases and 2.4% of all environmental complaint cases filed), meaning advertisers are asked to remove or amend the advert in its current form.

In the report, Badvertising also examines 12 cases where complaints were not upheld, citing this as evidence that the ASA’s remit is currently not broad enough to address the issue of greenwashing effectively.

“The 12 case studies listed in the table in the report are representative of all the complaints Badvertising and Adfree Cities filed to the ASA for greenwash and environmentally misleading advertising from 2022 up to now. The sample covers a range of industries and businesses that are key contributors to climate change and have all made public statements on reducing their environmental impact and joined various climate initiatives to help accelerate the transition. While this does not provide a wholly representative sample, it does illustrate several of the issues noted in the way these complaints were dealt with,” a spokesperson told The Drum.

As a result of these findings, Badvertising argues that the ASA “is not currently fit for purpose to protect citizens from the public health and climate impacts of high-carbon advertising,” before going on to lay out a series of recommendations for advertising regulation reform. These include tobacco-style ad ban on high-carbon industries such as fossil fuels, automotive and aviation, giving the ASA a mandate to legally enforce rulings with fines, enforcement powers for the ASA to suspend an advert pending investigation and more explicit guidelines on the UK’s regulatory framework.

What does the ASA say?

The ASA tells The Drum that Badvertising’s report “fundamentally misrepresents and misunderstands the data” and how it handles complaints.

“Most of the complaints we receive don’t identify issues that break our rules or otherwise fall outside of our remit. Where there are areas where we can take action, where appropriate we resolve cases informally rather than formally to secure necessary amendments to ads and instruct advertisers on how to avoid their ads being sanctioned in the future. That approach enables swift resolution of issues and is consistent with better regulation principles set by government for regulators to act proportionately,” a spokesperson explained.

The ASA elaborated that it doesn’t just rely on complaints from the public to find and remove ads but that it proactively investigates complaints where it identifies issues itself through project research, gathering an understanding of how the public interprets green terms, and letting that lead policy.

Rebutting Badvertising’s demand that the ASA should be able to suspend ads while they are under investigation, the spokesperson added: “We have the power to suspend ads pending the outcome of an investigation but can only exercise that in rare circumstances given that businesses, like individuals, have the right to freedom of speech as enshrined in law. The principle of innocent until proven guilty (proportionality) therefore applies, as does the importance of advertisers and complainants being given the opportunity to make representations to us and provide evidence during investigations.

“We should also note that whether the advertising of high-carbon products should be permitted at all is a matter for government and outside of our remit. Where such advertising is not subject to legal bans, our strict rules ensure that it is not likely to mislead and is not socially irresponsible.”

The spokesperson concluded: “Playing our part in fighting climate change is one of our key priorities, continues to drive our work and is embedded in our new five-year strategy. We’re the frontline regulator for UK advertising – we think that’s abundantly clear. And we work closely with partner regulators where appropriate including for back-up and enforcement work.

“We’re working hand in glove with the CMA and FCA on green claims to ensure consistency and clarity for consumers and businesses. Our work on climate change is ambitious, world-leading and has been repeatedly commented on at home and abroad as making a significant contribution to the debate around green claims in ads.”

You can read Badvertising’s report here. You can learn more about the ASA’s work to combat misleading green claims here.