Lawyers at McCann FitzGerald have highlighted the advertising watchdog’s increased scrutiny of all business sectors in relation to misleading advertising and ‘greenwashing’.

The Advertising Standards Authority (ASA) published its annual report for 2023 last week, and has also issued new guidance on some areas.

In a note on the firm’s website, McCann FitzGerald lawyers note the watchdog’s recent guidance on the use of claims such as ‘unlimited’ or ‘limitless’, or words or phrases that claim unlimited use or access to an advertised product or service.

Limits

The firm says that the guidance note is clear that companies are not prohibited from offering a product or service which has a limit on usage/consumption.

“However, where there is such a limit, the relevant product or service should not be described as ‘unlimited’ or ‘limitless’,” they add.

The guidance is effective from 25 April 2024, but the ASA will allow a six-month lead-in period to give advertisers time to amend their campaigns.

EU directive proposed

On ‘greenwashing’, McCann FitzGerald lawyers note the ASA’s recent opinion that environmental claims in advertisements must be truthful and must be based on the full lifecycle of the advertised product, and not only on part of the product’s lifecycle.

The ASA has also warned that, if a proposal for an EU directive on the issue is adopted, advertisers could face “significantly increased workloads” in order to comply with legislative requirements to provide “evidence-based substantiating material” to ‘prove’ green claims before going to market to advertise a product or service.

The McCann FitzGerald note also states that it is clear from the ASA’s recent decisions that comparative claims and claims using superlatives require a high level of substantiation.

Evidence

It points to a “significant risk” that the ASA will consider such claims (such as ‘leading’, ‘best’, or ‘cheapest’) to be misleading and in breach of its code, in the absence of adequate substantiating evidence.

The lawyers note that 15 out of the 18 complaints upheld by the ASA Complaints Committee in its latest complaints bulletin involved misleading marketing communications.

“It is clear that advertisements that have the potential to mislead consumers by omitting, hiding or presenting material information in an unclear, unintelligible, ambiguous or untimely manner continue to be a focus of the ASA,” they conclude.