Helen Hart, Regulatory Affairs Manager, IPM
There has been quite a lot of traditional and social media
furore about Clearcast’s decision to refuse to clear Iceland’s Christmas
television advertisement for broadcast. Many of our members do not carry out
television or radio activity, but for broadcast advertising, pre-clearance is
required by Clearcast. Clearcast refused to clear the ad in this case, saying
that it breached the rules on political advertising as it dealt with the issue
of palm oil.
I thought it might be helpful to discuss a couple of themes
arising out of the Iceland ‘incident,’ exploring what
counts as a political advertisement, why are they not permitted and ‘greenwashing’ in advertising.
Political advertising is dealt with differently to other
forms of advertising and is defined in section 7 of the CAP Code as:
“Claims in marketing
communications, whenever published or distributed, whose principal function is
to influence voters in a local, regional, national or international election or
Non-broadcast political advertising is exempt from regulation
under the CAP Code. Somewhat confusingly, marketing communications by central
or local government are treated as being distinct from those concerning party
policy and are covered.
Broadcast political advertising is banned under the
Communications Act 2003. Instead, parties are given airtime via party-political
broadcasts, which are not classified as advertising. Ofcom regulates this area
rather than the ASA. An advertisement contravenes the prohibition on political
advertising if it is inserted by or on behalf of
a body whose objects are of a political nature.
One of the main reasons
political advertising is exempt from the CAP Code is the fact that political
advertisements tend to run for short time frames during election campaigns.
Therefore, complaints subject to ASA investigation would be ruled upon after an
election has taken place.
In 1998, the ASA referred the matter to the Neill Committee
on Standards in Public Life. The Neill Committee recommended that political
parties should establish a code of best practice in partnership with the
advertising industry. The report
was presented to Parliament in July 1999. The Electoral Commission carried out
a consultation in 2003 about the regulation of electoral advertising. It
concluded that the ASA and CAP should not be responsible for regulating
electoral advertising and the position has not changed since.
However, the ASA will
intervene if an advertisement by a public body crosses the line of
acceptability. In 2016, the ASA ruled on a poster campaign by Nottingham City
Council about beggars. The ASA ruled that the posters reinforced negative
stereotypes of people and were likely to cause serious or widespread offence.
The ASA has also ruled on misleading claims by local and central government, including a teaching advertisement, Green Deal
Initiative advertisements and an advertisement on a consultation for speed
limits in Brighton & Hove.
The ASA has often had cause to uphold complaints about
environmental claims in advertising, that cannot be substantiated – termed ‘Greenwashing.’ It is easy to see why it is
tempting to talk-up environmental performance of products, the reduction of use of plastic, or in this case, palm
oil, for marketing purposes. Protecting the environment never ceases to be a
hot topic and, at the moment, reducing the use of plastic is the big theme. In
addition, many organisations want to demonstrate their environmental
credentials as part of their corporate social responsibility objectives.
As well as this, the Companies Act 2006 includes a duty on
company directors to promote the success of the company having regard, among
other matters, to the impact of operations on the community and the
As mentioned, the ASA has investigated and upheld many
complaints against advertisers who have made unsubstantiated environmental
claims. Most arise in the energy,
motoring and airline sectors, as well as in relation to organic food. The CAP
Code has a dedicated section on environmental claims, which
requires marketers to:
- Explain the basis of environmental claims.
- Qualify claims where necessary.
- Acknowledge whether informed debate exists.
- Unless stated otherwise, use a ‘cradle to grave’
assessment when considering a product’s environmental impact and make clear the
limits of the life cycle.
- Hold robust evidence for claims and comparisons.
- Avoid misleading consumers by using confusing or
The ASA and CAP have issued guidance on green claims
in advertising and ensuring your
environmental claims are more than just hot air. There is also a
help-note about organic food
claims and marketers should be aware
of DEFRA’s Green Claims
Advertisers found guilty of greenwashing can find their
credibility damaged and come under fire from pressure groups. In the ‘new’
world of social media, the ensuing Twitter storm can be as damaging as negative
coverage in the traditional media.
As well as upheld ASA complaints, it is also worth mentioning
that marketers can fall foul of the Consumer Protection from Unfair Trading
Regulations 2008, which impose a duty on traders to trader fairly, thereby
ensuring that marketing is not misleading.
Our key points of advice for members would be:
- Get your facts right and do not exaggerate the
environmental benefits of a product.
- Back up your claims with documentary evidence.
- Do not present claims as being universally
accepted if the science is developing.
- Do not use terms that are not generally
understood by readers.
- Avoid sweeping terms such as ‘environmentally
friendly’ or ‘wholly biodegradable.’ It
is unlikely that you can prove a product as no adverse environmental impact.
- If you say something is 'locally' produced it
means exactly that. Bringing goods from one end of the UK to the other is not 'local.'