The Green Claims Code


The Green Claims Code

The Competition and Markets Authority (CMA) is the UK’s primary competition and consumer authority. Its objective is to make markets work well for consumers, businesses and the broader economy. It has powers to tackle practices and market conditions that harm consumers and hinder their decision making. The CMA uses its consumer protection law powers to protect consumers from unfair business practices and unfair contract terms, for which it has the lead role. The CMA can go to court to enforce consumer protection law. The CMA also has the power to protect businesses from misleading marketing by other businesses.

As part of its role, the CMA produces guidance for businesses to clarify their consumer protection law obligations and promote compliance. A new Green Claims Code has just been published. The Green Claims Code. This week, on 20 September 2021, the UK’s CMA released its guidance on environmental claims on goods and services. An alternative title could be: “If you greenwash, we’re coming to get you. And we’ve covered every base”. “If you’re using environmental credentials to sell a product or service, your customers need to know they can trust them. You can read the Code here: “.

It is a blueprint – so we, as consumers, can crack down on greenwashing globally. It is also an excellent guide for how ethical businesses can communicate in a way that helps their customers to make informed decisions AND shine a spotlight on those who do not follow the same transparent, specific and clear messaging. If you are a business in the UK, or you trade in the UK, from January 2022 CMA is going to be cracking down on greenwashing. And it could get messy. A bit of me hopes it does very rapidly!

A practical, how-to guide. This week’s article is an in-depth guide to what ethical businesses need to know about the Green Claims Code. It is a clear, practical ‘how-to’ for what all businesses need to do to comply.

What are environmental claims, and when are they misleading? Environmental claims are those which suggest that a product, service, process, brand or business is better for the environment. They include claims that suggest or create the impression that a product or a service:

• has a positive environmental impact or no impact on the environment;
• is less damaging to the environment than a previous version of the same good or service; or
• is less damaging to the environment than competing goods or services.

Environmental claims may concern the impact on the environment in general or on specific environmental aspects such as the air, water or soil. Environmental claims can be explicit or implicit. They can appear in advertisements, marketing material, branding (including business and trading names), on packaging or in other information provided to consumers. All aspects of a claim may be relevant, such as:

• the meaning of any terms used;
• the qualifications and explanations of what is said;
• the evidence that supports those claims;
• the information that is not included or hidden;
• the colours, pictures and logos used; and
• the overall presentation.

Environmental claims are genuine when they properly describe the impact of the product, service, process, brand or business, and do not hide or misrepresent crucial information. Misleading environmental claims occur where a business makes claims about its products, services, processes, brands or its operations as a whole, or omits or hides information, to give the impression they are less harmful or more beneficial to the environment than they really are.

The principal focus of this guidance is environmental claims that businesses make to promote their goods, services, processes or brands. However, the points made are also relevant to the wider category of sustainability claims. Businesses should also have regard to this guidance when making sustainability claims.

Why the Code is so important? It brings out the opportunities for the unethical, cynical greenwashing that is so prevalent. Do these new guidelines leave any wriggle room for those who make grandiose, aspirational claims about becoming Net Zero. The answer is YES. Nothing is perfect but the full guidelines cover a LOT of bases. And it is clear that the CMA is ready to use its might. This is not a quick PR stunt. There is a lot of thinking that has gone into preparing the document, and it looks like there is an equally well-thought-out plan to make sure it is taken seriously and implemented.

Are unsustainable business models under threat? One of the crucial things about the CMA guidelines is that there is a heavy focus on not omitting relevant information; and ensuring that the full life cycle of products is taken into account. There is even reference to the role of durability and disposability in environmental impact. Fast fashion is an example of a sector clearly on notice. It is a lot harder to make “Our clothes will be made of recycled fibres” sound good when you have to accompany that with “but they will release microfibres into the ocean and are extremely hard to recycle”. Clearly, unsustainable business models will not be eradicated the moment the CMA starts tackling greenwashing. But it is going to be much harder for businesses to present a glossy aura of “We care” whilst continuing to operate in a fundamentally unsustainable way. It is not so much that these companies are being forced to change what they do. But they will have to stop presenting half the picture to us as customers.

Not being able to make claims that miss out information that customers would want to know? Not getting away with presenting half a story? Surely that is going to be one of the most effective ways of ‘encouraging’ meaningful changes in unsustainable practices. Closer to home, just looking at salmon aquaculture in Scotland, sold to the world as sustainable, in pristine waters, by both companies and the Scottish Government; just look at the pictures and words on wrapping of salmon fillets in any Scottish supermarket, but also just reflect on all those unanswered questions. It should be able to justify in detail its repeated use of “sustainable” in terms of the operation, both now and in the future, of salmon farming in Scotland. A letter on behalf of 28 NGOs and community groups in Scotland to Cabinet Secretary of Rural Affairs and Islands, Mairi Gougeon, requests substantive answers to a list of questions relating to Scottish Government’s repeated use of “sustainable” and “sustainability” in correspondence, as regards salmon farming in Scotland. The Cambridge Dictionary defines “sustainable”, in the context of the environment, as “causing little or no damage to the environment”.

1. Where in the world has the goal of sustainable salmon farming actually been achieved?
2. How can an industry that sources much of its feed, including wild fish and soy, from poor countries in South America and West Africa, transports it for thousands of miles and subsequently airfreights the finished product (those fish that do not perish before harvest due to disease and parasites) worldwide, be deemed sustainable?
3. Can a business model that incorporates some 20% mortality before harvest be deemed sustainable?
4. Can an industry, that is responsible for ecocide or the severe degradation of Scottish coastal ecosystems in the “aquaculture zone” and the destruction of significant and valuable fauna and flora that depend on unpolluted waters, be deemed sustainable?
5. How is it sustainable to permit effluent from open cage farms to be dumped untreated into the sea? (Industries which free ride on publicly owned assets are inherently unsustainable)
6. How can an industry, which routinely uses highly toxic chemicals to kill sea lice before discharging these chemicals into the marine environment, thus killing other crustaceans in the vicinity, be deemed sustainable?
7. How can an industry that takes tens of thousands of wrasse from the wild, confines them in salmon cages before killing them at the end of the salmon production cycle, be deemed sustainable?
8. How is it sustainable to import wild wrasse from Southern England, releasing them (at least those that survive the journey north) into Scottish waters, when there are no biosecurity measures in place to ensure that the imported wrasse are not carrying Anilocra lice?
9. Where in the world has the growth of intensive salmon farming not coincided with the collapse of wild salmon runs? (It is no coincidence that the only remaining abundant wild salmon runs are in Alaska, with no salmon farms, and Russia, with hardly any salmon farms).
10. How can Scotland’s salmon farming industry be defined as sustainable when there has been no attempt by Scottish Government, despite numerous requests from ourselves and others, to assess its impact upon other stakeholders?

The Scottish Government needs to be held to account for its entrenched support for open net salmon farming and its further expansion, whatever the environmental cost. Accordingly, salmon farming companies and the Scottish government will have to provide substantive direct answers to the following substantive questions to our letter with the arrival of the Green Claims Code in January 2022. These questions will be on the CMA desk after 1 January 2022.

One of my real concerns is the use of “Certifications” (see April 2021 Issue 121 for full discussion on farmed salmon certification from krill in Antarctica, soya from Brazil, greenhouse gas emissions to sustainable air freight to markets around the world). We need to be aware of offsetting too as a means of really doing little about the basic problems of greenhouse gases, climate change and lack of sustainable industries. Re-wilding, planting trees, growing seagrass meadows cannot be excuses or “offsetting by paying” for doing as little as possible to change industrial processes that produce greenhouse gases and climate change.

The principles are: explained in Chapter 3 of the CMA’s The Green Claims Code
• claims must be truthful and accurate
• claims must be clear and unambiguous
• claims must not omit or hide important relevant information
• comparisons must be fair and meaningful
• claims must consider the full life cycle of the product or service
• claims must be substantiated

Campbell, Sally (2021) Despite Millstone Point, our campaigning is not yet done Issue 121
U.K. Gov (2021) Green claims code: making environmental claims on Goods and Services
U.K. Gov. (2021) The Green Claims Code checklist
CMA guidance on environmental claims on goods and services. Helping businesses comply with their consumer protection law obligations. Report

Sally Campbell
September 2021