South Africa’s Advertising Regulatory Board and the Consumer Protection Act enable consumers to lodge complaints when they suspect an advertiser or marketer of greenwashing.
Consumers are becoming increasingly aware of terms like “eco-friendly” and “sustainable”. They also have greater expectations that their favourite brands will address environmental concerns. The brands that do not may lose customers. Some brands are attempting to capitalise on the growing demand for environmentally-sound products by greenwashing, which means making unsubstantiated claims to deceive consumers into believing that their products are environmentally friendly when they are not.
At the recent COP27 meeting, the UN's Secretary-General stated that "we must have zero tolerance for net-zero greenwashing", shedding light on another form of greenwashing happening across the globe. This occurs when businesses and financial institutions pledge to reduce their greenhouse gas emissions to net-zero without providing any benchmarks or criteria for achieving that goal. A report published by the UN's High-Level Expert Group on the Net-Zero Emissions Commitments of Non-State Entities makes it clear that claiming net-zero status cannot be a slogan or marketing campaign. It must be a transparent roadmap to action by businesses and other institutions.
Across the world, regulatory action against greenwashing claims is becoming more frequent. The Advertising Standards Authority (ASA) in the UK is one of the channels where the public can lodge greenwashing complaints. The other regulatory bodies are consumer protection and financial services regulators. The ASA has passed an advertising code for environmental claims and has issued decisions in relation to greenwashing claims in different sectors, including food and beverage, transport and financial services. The ASA has found against, for example, Ryanair for claiming to be "Europe's lowest-emission airline", Lipton for claiming to be "100% recycled" and Hyundai for claiming to manufacture "a car so beautifully clean, it purifies the air as it goes".
In line with international trends, the South African advertising watchdog, the Advertising Regulatory Board (ARB), provides guidance on using environmental claims in the advertising of goods and services for the South African market in the Code of Advertising Practice (Code).
The Code prohibits the use of advertisements containing any statement or visual presentation which, directly or by implication, omission, ambiguity, inaccuracy, exaggerated claim or otherwise, likely to mislead the consumer. In relation to environmental claims, advertisements should provide accurate information, which is meaningful to the consumer and is based on scientific standards and principles. Advertisements should not contain vague, incomplete or irrelevant statements about environmental matters, nor impair public confidence in the efforts made by the business community to improve its ecological standards. A consumer or competitor concerned about unqualified claims and statements about environmental matters can lodge a complaint with the ARB requesting that the environmental claims be investigated.
The Code is a quick and cost-effective procedure and an adverse ruling by the ARB could lead to the advertising campaign or packaging being withdrawn from the market.
The Consumer Protection Act, 2008 (CPA) also regulates marketing practices by prohibiting the marketing of goods through false, misleading or deceptive representations of fact regarding the goods or services. It provides statutory remedies for the enforcement of consumer rights. However, there are many complaints before the National Consumer Commission, which may delay the outcome.
The ARB not only provides consumers and competitors with a cost-effective and time-efficient solution but, in a recent ruling, Advertising Regulatory Board NPC and Others v Bliss Brands (Pty) Ltd [2022] ZASCA 51 (12 April 2022), the court held that the ARB does not only have the power to rule against a member of the ARB but also to decide on complaints about an advertisement of a non-member of the ARB. Consequently, a greenwashing complaint can be lodged against any entity, whether it is a member of the ARB or not.
In future, South African businesses need to ensure that the environmental claims they make are accurate and that they can be substantiated with evidence.
