Legal Briefs

britain’s advertising standards authority not so green

Advertisers in the UK who respond to the blossoming green agenda by making exaggerated environmental claims had better beware. The watchdogs are green, but they are not naïve.

This spring saw a bumper crop of Advertising Standard Authority (ASA) investigations into environmental advertising. For example, an advertisement for the Lexus Sports Utility Vehicle (SUV) used the headline: “HIGH PERFORMANCE. LOW EMISSIONS. ZERO GUILT.” Ten people complained this implied the vehicle caused little or no harm to the environment. Lexus protested that the artwork contextualized the claim to an SUV. The ASA accepted that the emission rates for the Lexus were low for an SUV, but not in comparison with all vehicles, and the words “ZERO GUILT” implied that the vehicle was environmentally friendly, so the ad breached the CAP (Committee of Advertising Practice) code.

The Advertising Standards Authority is the independent body set up by the British advertising industry to regulate the content of advertisements, sales promotions and direct marketing in the UK. It is also supported by the Committee of Advertising Practice (CAP), well known throughout the world for successfully establishing self-regulatory advertising codes to both protect consumers and create a level playing field for advertisers. The ASA investigates complaints about ads, which are primarily made through a form on its website: www.asa.org.uk At the end of June, the ASA also announced five golden rules for green claims:

1. Get your facts right: avoid exaggerated claims and substantiate them with documentary evidence.

2. If the scientific jury is out, don’t present claims as universally accepted.

3. Don’t use pseudo-science or confusing terminology

4. Avoid generalized claims like “environmentally friendly” unless you can prove your product has no environmental impact

5. “Locally produced” means in the same part of the same country, and certainly not from overseas. The Director-General of the Confederation of British Industry (CBI), the UK's leading (independent) employers’ organization representing public and private sector companies, has warned the Advertising Association that politicians are alive to this green issue, and it is high on the agenda of the Trading Standards Institute.

So beware: MP’s and Trading Standards Officers will be weeding out any overgrown green claims.

Brinsley Dresden is a partner at Lewis Silkin Solicitors in London, and Head of the Media, Brands and Technology Department. He is an intellectual property lawyer who advises on all aspects of advertising, marketing and sales promotion law and regulation, clearance work, and disputes with the regulatory authorities. He acts for many of the UK’s top advertising agencies and several major advertisers. Brinsley was a key player in drafting and negotiating three standard form client/agency contracts for the advertising, direct marketing and public relations industries on behalf of the industry’s main trade associations. As the UK member and Vice Chairman of the Global Advertising Lawyers Alliance (GALA), he also provides advice on international campaigns around the world. Brinsley Dresde can be reached at brinsley.dresden@lewissilken.com. This column was adapted from a lengthier article by the author. GALA is headquartered in New York City. Information and contacts are available through its Web site: www.gala-marketlaw.com.