Green aviation claims fail to land with UK regulator

2023 saw a real upturn in levels of enforcement against misleading environmental claims by both the Competition and Markets Authority (CMA) and the Advertising Standards Authority (ASA) in the UK.

The ASA has chosen to be particularly proactive with its enforcement action against greenwashing. Its adjudications throughout the year have shown how it has had a close eye on certain sectors and the claims they have used. The latest sector to fall under its spotlight has been the aviation industry.

Travellers are keen to know how they can still explore the world while seeking to limit their environmental footprint. Consequently there has been an increase in messaging about sustainable fuels for aviation, hotels seeking to provide their services in more environmentally sound ways and comparisons of the carbon footprints of flights.

The ASA has taken a look at some of these claims, focusing on claims made by three different airlines that appeared in paid-for Google ads during July 2023. All have all been found to be misleading and in breach of the UK self-regulatory advertising codes.

Central to its findings was the fact that there are currently no viable initiatives or commercially viable technologies in use today to facilitate sustainable air travel. Any absolute claims that reference sustainable air travel of some description will require a high level of substantiation to evidence what is asserted.

The rulings

The ASA scrutinised claims made by Air France, Lufthansa and Etihad Airways respectively, and felt they had all given misleading impressions of their environmental impact.

It found that the claim by Air France of customers being able to "travel better and sustainably" would be understood by consumers to mean Air France offered sustainable and environmentally ways to travel by air. Similarly, Lufthansa's use of the claim "fly more sustainably" would be understood as offering a way to travel that had a lower environmental impact than other airlines. Meanwhile, the claim "total peace of mind with Etihad Airways. Environmental Advocacy. Award Winning Service" would be taken to mean that consumers can have total peace of mind regarding the environmental impact of their flights with the airline. These are very broad absolute claims that would require robust evidence to support them.

The ASA concluded that air travel is known to produce high levels of both CO2 and non-CO2 emissions, and is considered to be a substantial contributor to climate change. In the absence of any evidence to prove otherwise, the claims made by these airlines all gave a misleading impression of the impact air travel actually has on the environment. 

In some cases, it found that the basis for the claims were unclear and any claims relating to sustainable flying did not elaborate on how such a sustainable effect was achieved in practice  –either within the ads themselves or within the substantiation that was provided to the ASA when the ads were challenged.

Within its response to its own ASA investigation, Lufthansa pointed out that the technical space limitations with Google Callouts meant that only limited information could be provided within the format of such an ad. Lufthansa believed consumers would be aware of the space constraints with these particular ads and so would not expect full explanations to be provided as to the meaning of these claims within the ads themselves. The ASA did not agree and pointed out that claims made in ads must never be misleading whatever the media: just providing a hyperlink to further information elsewhere is not sufficient if the main claim itself is in some way misleading.

What this means

Absolute claims such as "fly more sustainably" will always require robust substantiation. Sweeping environmental claims are best avoided in place of more focused, specific claims about what a business is doing to seek to make their product, service or business more sustainable.

Any claim that is unclear in scope is at a high risk of being considered misleading by regulators. Advertisers cannot hide behind their choice of media being limited in terms of time or space for not providing consumers or business customers with all the material information needed to understand a claim. Media choices need to be made carefully where environmental claims, in particular, are concerned: the scrutiny on green claims is not going to recede any time soon.

While the ASA is continuing its proactive stance to enforcement action in this space, the CMA has already hinted that the travel and transport sector is one that it could look at in the future as part of its sector investigations into greenwashing. Travel and transport could follow the fast fashion retail and fast-moving consumer goods sectors for CMA scrutiny: businesses in those sectors should pay careful attention to the ASA's recent adjudications and ensure they are following the latest guidance to mitigate future risk.

Samantha Rooney, Trainee Solicitor at Osborne Clarke, assisted in the preparation of this Insight.