Hot on the heels of last week’s energy rulings, we have the results of two investigations into environmental claims made by water companies. Both decisions look at the overall impression of the ad in the context of the companies’ activities generally, but with very different outcomes. This continues the trend of rulings by the ASA which consider not just the claims in the ad, but the businesses generally.
Time and time again we are seeing the ASA pulling up companies because of the wider context in which the green claim is being made. Context has always been key, but the scope of that context is changing. Now we can’t just look at the claim in the context of the ad, but the context of the company’s wider concurrent activities or even historical actions.
These two rulings are great to read together because the subject matter of the claims is similar but the context in which they were made is different. The Anglian ad featured a girl who said “Right now Anglian Water is creating wetlands to clean water using nature and make homes for wildlife. By building a really long pipe to bring water to places that need it most, while protecting nature too. And huge tanks to collect rain so there’s less chance of floods in the future. In fact, everything they do today is for tomorrow…” While clearly focusing on specific activities and specific things that it was doing to improve the position environmentally 'for tomorrow', the ad received nine complainants challenging whether the ads were misleading, because they omitted significant information about Anglian Water’s history of releasing sewage into the environment.
Anglian Water was found to mislead because the ASA considered that overall impression of the ad was that Anglian Water was making, and intended to make, a positive overall environmental contribution as a company. Rather than focusing on whether the ads were factually accurate, the ASA concluded that environmental claims were contradicted by other activities it undertook. Notably, its two star (out of a possible four) Environmental Performance Assessment (EPA) was a factor, despite not featuring in the ad. The ASA considered this material information which should have been made clear in the ads, not withstanding the fact that no transactional decision could be made based on this information (as consumers have no choice about their water provider).
However, by contrast, near identical complaints were not upheld againt Severn Trent Water’s ad that featured its tree planting activities whilst encouraging the public to get involved. Again, the ASA concluded that the overall impression of the ad was that Severn Trent Water were making, and intended to make, a positive overall environmental contribution as a company. As part of that contribution, they were undertaking an environmentally beneficial activity by planting 1.3 million trees, which would have positive benefits for nature and the environment.
In relation to this ad, the complaints were not not upheld on the basis the claims made were not contradicted by the company’s other activities. Again the EPA appears to be a key factor, but given the EPA was four stars and it had "industry leading company" rating, this time it was in the advertiser's favour.
It's also interesting to see that when looking at the context of claims that the ASA will not look back indefinitely, will not require perfection, and concluded that Severn Trent's "recent overall environmental performance was good." However it does leave a question over what is or is not going to be considered by the regulator.
Having read last week's utilities rulings, one would be forgiven for wondering if it's ever possible to talk positively about current and future activities without also having to declare every past activity. The Severn Trent Ruling shows that it is possible to make claims which refer to positive initiatives successfully.
At this point, when developing environmental claims, it's advisable to work on the basis that they will be scrutinised. Delve into the details and look at the context of the claims with a critical eye in-house first, so that rulings where the complaints are not upheld become the norm, rather than the exception.
Please contact our authors Katharine Mason or Dominic Watkins if you have any queries regarding any of the above.
