New guidance and increased ASA scrutiny of sustainability and environmental claims in food and agriculture adverts planned for summer 2024.

In April the ASA published its research into consumer understanding of environmental claims in food, drink and agriculture advertising (for more on the research see our blog post here).  Last week the ASA republished this as part of its newsletter including a reminder of the plans for summer 2024.  Specifically:

• CAP will be publishing a series of insight articles focusing on different aspects of the research in giving guidance to food, beverage and agriculture firms on how to advertise compliantly.
• Starting July 2024 the ASA will increase its proactive monitoring of environmental claims in food, beverage and agriculture ads.  The ASA will be specifically looking to generate precedents by formally ruling on borderline issues, so we can expect a series of rulings which will further guide what the ASA considers to be compliant.
• In parallel, the ASA also has plans to formally engage with industry and other stakeholders on guidance for regenerative farming claims, so we can expect further guidance on these claims shortly.

All of the above suggests that food and agriculture firms seeking to advertise their environmental credentials are likely to have an interesting summer.  Without a doubt there will be an increased ASA enforcement risk as a result of the additional proactive monitoring of these ads by the ASA.  Further, the ASA’s desire to generate rulings on borderline issues means advertisers are less likely to be able to informally resolve issues related to environmental claims, meaning they will be forced into the onerous formal resolution process.

The net effect of what is likely to be a series of interesting formal rulings plus the new guidance from CAP means that by the end of the summer there is likely to be a new deeper understanding of what compliance looks like for environmental claims by food, beverage and agriculture companies.

These types of initiatives always result in some interesting and unexpected developments.  That said, based on the research we have seen so far, we predict the following types of claims will be particularly in focus:

• Biodegradable, compostable,  recycled and recyclable claims.  The ASA dedicated half the interviews in the research project of these claims specifically.  Although there is not much detail in the research report, it is made clear that consumers feel these terms should have a specific meaning, so it is likely we will get more guidance on this topic.
• Plant based environmental claims.  The research focused on certain types of food, particularly plant-based alternatives, and took account of views from meat eaters and vegetarians and vegans.  The ASA has already looked at claims that plant-based diets are more sustainable generally than meat-based diets in the parallel to Tesco’s and Sainsbury’s rulings – it is likely that the new rulings and/or guidance will codify and expand on these rules.
• Scrutiny of natural claims and fresh imagery as potential environmental claims.  The research seems to suggest that natural claims and imagery which suggest a product is fresh could be construed as an environmental claim by some consumers.  So we can expect the ASA and CAP to seek to explore when a natural claim or fresh imagery might amount to an implied environmental claim.
• Regenerative farming claims.  In addition to promising specific guidance on this claim the ASA has committed to engaging with industry and other stakeholders on regenerative farming claims – so clearly they consider this to be a particular issue.
• Comparative environmental claims.  The research concluded that consumers wanted to see more specific detail about how comparisons are made including details of life-cycle analysis.  So it is likely that information needs to be made public for comparative environmental claims.

In light of the above and the ongoing CMA and other regulatory enforcement risk (for more on CMA requirements see here and here for more in relation to other regulators including the FCA and Ofgem) in relation to green washing, now is a good time to review any environmental or sustainability claims being made in advertising or other forums which is subject to ASA enforcement such as websites, social media and promotional materials.

Any should take account of parallel EU developments, particularly the green claims directive which will apply from 27 September 2026 - for more on this see here.