Earlier this year, Defra – the Department for Environment, Food and Rural Affairs – published draft guidance for businesses on making green claims. It’s extremely user-friendly and should keep all businesses on the right track when making environmentally-friendly assertions about their operations. The draft should be finalised by the end of 2010.

The guidance, “Green Claims Practical Guidance – How to make a good environmental claim”, makes it clear that there’s no mandatory requirement for companies to provide information or make a “claim” about their environmental credentials as such. Following this guidance will ensure that you don’t fall foul of certain legislative requirements, such as the consumer protection legislation mentioned below, or open your business up to objections or other negative publicity from dissatisfied or disillusioned customers.

Relevant legislation

If you’re involved in consumer products, then you need to comply with the fairness tests in the Consumer Protection from Unfair Trading Regulations 2008.

This is aimed at protecting consumers from commercial practices which fall below a standard of honest market practice or good faith. This includes specific categories of misleading actions and aggressive practices which may harm the average consumer, for example falsely claiming accreditation to a code of practice. Consumer protection legislation is enforced by the OFT and the local authority trading standards officers.

The Defra guidance supports the codes of the Advertising Standards Authority and these should also be referred to. 

You should also be aware of the International Standard ISO14021 on self-declared environmental claims, which is also being amended and should be finalised by the end of 2010.

What is a green claim and are you making one in your product labelling and literature?

All forms of self-declared marketing and promotional claims made on packaging, labelling, advertising, marketing and promotional material which relate to environmental claims or issues fall within the term.

For example: a hotel stating that it’s more environmentally friendly than its competitors for offering locally-sourced food would be found to be an unreasonable claim if the greenhouse gas emissions from its operations are still significantly greater than its competitors.

The guidance applies to both statements relating to current performance and to aspirations. It also impacts upon third party labels and declaration schemes, such as the EU Ecolabel scheme and mandatory labels such as the “A-G” labels for energy-using products or other third party labels such as the Forestry Stewardship Council or the Energy Savings Trust’s energy saving logo for energy efficient products.

How do you make a good environmental claim?

To make a robust and defensible claim you should ensure:

• the content of the claim is relevant and reflects a genuine benefit to the environment;
• the claim is presented clearly and accurately; and
• the claim can be readily substantiated.

Before you consider making such claims, the guidance makes it clear that first you need to have a good understanding of the environmental impacts of your product, service or business. 

For a product or service, this will probably mean undertaking a life-cycle assessment, although you probably won’t have to carry out a full assessment of every aspect of your product. At the very least a high-level understanding of the main impacts will be necessary.

For an organisation, you may well have to measure and monitor your performance against key environmental indicators. There are numerous standards and guides which may make the assessment process simpler.

Once you have understood the impact of your product or service, you’ll be better placed to determine what type of claim you may be able to make. Consider focusing on the biggest impacts or ensuring that it is relevant to the core market.

Make sure all claims are expressed clearly and by reference to appropriate benchmarks or standards with which the customer is familiar (for example, the energy saving logo for energy efficient products) and which has the correct main focus of your claim, as some labels have a distinct ethical or social focus rather than an environmental focus.

Finally, only make claims where there is a benefit which is additional to that which is already required or happening. Don’t claim a benefit where it arises purely due to a legal requirement, or that relates to the absence of an ingredient which has never been used.

Mostly, this is pure common sense but useful examples do help to bring messages home and the guidance contains some worthwhile ones.  Equally, there are some sector-specific guidance notes which may be relevant, such as CFC free claims on aerosols.

Summary

To summarise, Defra’s guidance is a critical reference tool for all organisations seeking to promote themselves in an environmentally-friendly light. Download a copy here.

Make sure that you take legal advice on the guidance and on specific regulatory requirements, such as product labelling. European measures are expected to impose greater requirements, so it’s worth keeping a careful eye of draft measures which could have a direct impact both on your product and how you are able to make green claims.

Helen Loose is a solicitor in Keystone Law’s General Commercial Team specialising in environmental and health and safety law.

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