Greenwashing: This week's ASA rulings show the ASA running hot and cold, but do they muddy the water?, Geraint Lloyd-Taylor

Flowing naturally from last week's rulings involving energy companies Shell, Petronas and Repsol, this week, the ASA turned its attention to UK water companies, Anglian Water and Severn Trent Water.

Helpfully, one of these decisions was upheld, one was not upheld. One was flushed with success, the other was flushed down the pan. It had cold water poured on it.

Some companies don't want to dilute their environmental claims - they want to make sweeping green claims Come Hell or High Water... and the risk will depend on a number of things, including the environmental credentials of the company itself.

So, these rulings should help advertisers divine the line between what's acceptable and what isn't, and may help you avoid getting into hot water with the ASA.

Excuse the tidal wave of water-related puns, but I'll be 'dammed' if this isn't an opportunity to shower you with them!

Anyway, here comes the serious bit:

Anglian Water

A TV ad and video on demand (VOD) ad for Anglian Water were seen in September and October 2022. Both ads were identical.

The ad featured a girl who said “Right now Anglian Water is creating wetlands to clean water using nature and make homes for wildlife. By building a really long pipe to bring water to places that need it most, while protecting nature too. And huge tanks to collect rain so there’s less chance of floods in the future. In fact, everything they do today is for tomorrow …”

A voice-over said, “Never still, never stop. Anglian Water. Love every drop.”

The ad included various scenes of a wetland and the wildlife living there, fields and wildlife, tanks collecting rainwater, a wind turbine, and an Anglian Water van with text on the side that stated “100% Electric 0% Emissions”.

Complaint

Nine people complained that the ads appeared to be misleading, because they omitted significant information about Anglian Water’s history of releasing sewage into the environment.

Response

Anglian Water Service Ltd said that the water industry was a regulated monopoly which meant that domestic customers did not have a choice over their supplier. They felt it was their obligation to elicit customer support for the changes Anglian Water wanted to see in their region, for example, helping customers save water and avoid sewer abuse.

Anglian Water argued that the ad referred to a number of initiatives that showed where Anglian Water were investing in environmental protection and improvement for the long term. The ads were part of a wider, multi-media and multi-channel campaign which explained each initiative and presented a more complete picture of the impact Anglian Water had on the environment, and how they were taking steps to reduce it where it may have been detrimental. The campaign also sought to address criticism aimed at both Anglian Water, and the industry more generally, regarding perceptions of environmental performance.

They worked within the parameters of those who regulated the industry, including the Environment Agency, the Drinking Water Inspectorate, Natural England, the Water Services Regulation Authority (OFWAT) and the Consumer Council for Water, and often exceeded their expectations.

They believed that they had an "overwhelmingly positive impact on the environment when all their activities were taken into account" and they did not believe that any significant information had been omitted from the campaign, of which the ads were a part.

They acknowledged that there had been active public debates about legacy assets such as combined storm overflows (CSOs), but said that they did not construct these anymore.

Anglian Water said it did not actively dump sewage into rivers and seas. Large tracts of the existing sewage network carried both surface water (e.g., rainwater) and wastewater (e.g., from homes and businesses) to Anglian Water recycling centres before it was cleaned and returned to the environment. Where exceptional storm events occurred, which could overwhelm the network, to avoid homes flooding the discharges to the environment compromised highly diluted sewage. This had a negligible environmental impact on the receiving watercourse and was permitted by the Environmental Agency.

Sewers, they said, had not been built like this for years, since well before Anglian Water came into existence when the water industry was privatised in 1989. Since then, Anglian Water had acted to reduce the number of CSOs and the frequency they operated. However, until they could be eradicated, they acted as a necessary safety valve in old sewerage systems to protect homes and businesses from flooding during heavy rainfall.

Clearcast endorsed Anglian Water’s comments. They ensured that they had evidence for all the claims made regarding the improvements and structures Anglian Water were putting in place, including how they would prove to be a benefit. They were satisfied that Anglian Water’s plan of action would help in the future.

They believed that the claim “everything they do today is for tomorrow” was referencing the initiatives that were discussed within the advert, and that those were very obviously pointed out. Referring to a news article that discussed Anglian Water’s river sewage discharges, Clearcast said that it was not relevant to the ads because they were clearly about Anglian Water’s future aims and the initiatives they were putting in place to help make the service better.

They provided copies of a number of press releases and pages on the Anglian Water website that they believed substantiated the initiates referenced in the ad.

Decision = UPHELD

The BCAP Code (applicable to TV ads) and CAP Code (applicable to the ad when it appeared on VOD) required that the basis of environmental claims must be clear, and that unqualified claims could mislead if they omitted significant information.

The ads stated “Right now Anglian Water is creating wetlands to clean water using nature and make homes for wildlife. By building a really long pipe to bring water to places that need it most, while protecting nature too. And huge tanks to collect rain so there’s less chance of floods in the future. In fact, everything they do today is for tomorrow”.

The ASA considered that the overall impression of the ad was that Anglian Water was making, and intended to make, a positive overall environmental contribution as a company. As part of that contribution, they were increasing their pipe network, cleaning water using nature and installing tanks to collect storm water, which would have positive benefits for wildlife and nature. The ASA considered that the voice-over, which stated, “In fact, everything they do today is for tomorrow” and the visuals used in the ads, which included various clips of green spaces, trees and wildlife, contributed to that impression.

The complainants were concerned because they understood that Anglian Water had a history of dumping sewage into rivers and the sea, had killed fish and wildlife as a result, and had been fined because of those actions.

All water companies had licences and permits that they were required to comply with to reduce their impact and protect the water environment. The Environment Agency stated that storm overflows were a necessary part of the current sewerage system. Water companies discharged storm sewage (wastewater diluted with rainwater) to rivers or seas during periods of heavy or prolonged rainfall to prevent storm sewage backing up into homes and streets. If they operated within those circumstances and were compliant with their permit, they were not reported and recorded as pollution incidents. Furthermore, water companies were monitored for their compliance with their permits to discharge treated water from sewage treatment works and water treatment works.

In 2021, which the ASA understood was the most recent year for which data was available, Anglian Water had an overall Environmental Performance Assessment (EPA) rating of two stars (out of a possible four), which meant that the ‘company requires improvement’. The EPA report stated that they performed below target (amber status) for the number of sewerage pollution incidents and for their compliance with their discharge permit. Their performance was significantly below target (red status) for the number of serious pollution incidents. Furthermore, Anglian Water had had enforcement action against them on multiple occasions in recent years for Environmental Permitting Regulations (EPR) offences.

The ASA accepted that Anglian Water were carrying out a number of activities that could have a positive impact on the environment. However, because they also carried out activities that caused harm to the environment, which contradicted the overall impression of the ad, the ASA considered that was material information which should have been made clear in the ads. We concluded that the ads omitted material information and were therefore misleading.

The ASA upheld the decision, turned off the taps, poured cold water on it, threw the baby out with the bathwater, the list of potential puns goes on.

Severn Trent Water

Another TV ad, this time for Severn Trent Water was seen around the same time as the above ad.

The ad for Severn Trent Water featured a voice-over that stated, “This isn’t just any old water. This is Severn Trent water. Our water. That’s why we’re working towards protecting it, nature and our future by planting a bucket load of trees. One point three million in fact. And we’ve planted the town green with 72 tiny forests to keep our grand-kids grand-kids connected with nature. Let’s do right by our environment, our community, our water. Get involved at wonderfulontap.co.uk”.

The ad included various scenes of bodies of water, people planting trees and people spending time in nature.

Complaints

Two complainants challenged whether the ad was misleading, because it omitted significant information about Severn Trent Water’s history of releasing sewage into the environment.

Response

Severn Trent Water said that the ad made a limited claim regarding a specific aspect of their activities – planting trees ‒ and encouraged viewers to get involved. The claims in the ad were not retrospective and they did not believe that claims that related to current and future activities had to include historical information.

The language used in the ad was clearly forward looking and stated that they were “working towards” a goal, which was followed by the specific activity (planting trees) which was helping them to achieve that. They believed that the reference to “Let’s do right by our environment” could not be taken out of the context of the planting of trees. The ads focus was on the trees they had already, and would in future, plant, and the call to action to viewers for them to get on board so that collectively they could do more.

They did not believe that viewers would infer any form of broader environmental claim about Severn Trent’s overall impact on the environment or interpret the ad as relating to historic events.

Notwithstanding that the ad did not make any claims regarding river protection or waste management, they said they had joined with another water company to improve river health. They said that, in 2021, which was the most recent year for which data was available, they had received the highest four-star rating from the Environment Agency, and were one of the top performers of all water companies for preventing pollutions as measured by the Water Services Regulation Authority (OFWAT). When more storm and ground water entered the sewer system than the pipes were designed for, combined storm overflows (CSOs) acted as safety valves to stop homes and businesses from flooding after heavy rain. CSOs were widely constructed up until the 1970s and were common throughout Europe. The discharges they made were permitted and regulated by the Environment Agency so as not to have a detrimental impact on rivers. Discharges from CSOs were not raw sewage, the vast majority was rainwater. In rare instances where it was not rainwater, Severn Trent launched clean-up operations.

Clearcast said that while the ad was focused on the work Severn Trent were doing for the environment, they nonetheless felt it was necessary to ask them what part they had or had not played in the river sewage pollution incidents that had been reported in the news around the time of the ad. Severn Trent provided them with details of the work they were doing to prevent pollution to the water system, including maintenance of storm overflows. They had been actively working to mitigate sewage dumping in rivers by upgrading the systems they maintained and increasing initiatives to prevent blockages from incorrect disposal of household waste into the sewer system, as well as looking into alternative ways to prevent flooding.

They endorsed Severn Trent’s comments that they had been rated by OFWAT as one of the top performing water companies, and that the use of storm overflows was permitted by the Environment Agency.

They understood that Severn Trent were working within the guidelines set by the Environment Agency with regards to any disposal of waste into the water system and were going beyond their obligation to do so with regards to their own target to improve water health and quality.

Decision = NOT UPHELD

The BCAP Code required that the basis of environmental claims must be clear, and that unqualified claims could mislead if they omitted significant information.

The ASA considered that the overall impression of the ad was that Severn Trent Water were making, and intended to make, a positive overall environmental contribution as a company. As part of that contribution, they were undertaking an environmentally beneficial activity by planting one point three million trees, which would have positive benefits for nature and the environment.

The ASA considered that the voice-over which stated, “Let’s do right by our environment, our community, our water” and the visuals used in the ads, which included various clips of nature imagery, contributed to that impression.

The complainants were concerned because, around the time the ad was broadcast, there had been news reports that water companies had released raw sewage into UK seas and rivers.

All water companies had licences and permits that they were required to comply with to reduce their impact and protect the water environment. The Environment Agency stated that storm overflows were a necessary part of the current sewerage system. They discharged storm sewage (wastewater diluted with rainwater) to rivers or seas during periods of heavy or prolonged rainfall to prevent storm sewage backing up into homes and streets. If they operated within those circumstances and were compliant with their permit, they were not reported and recorded as pollution incidents. Furthermore, water companies were monitored for their compliance with their permits to discharge treated water from sewage treatment works and water treatment works.

The ASA understood that in December 2021, Severn Trent were fined for sewage discharges from a number of their sewage treatment works that occurred during 2018. Their Environmental Performance Assessment (EPA) report from 2021 stated that they performed better than target (green status) for the number of sewerage pollution incidents and for their compliance with their discharge permit, although their performance was below target (amber status) for the number of serious pollution incidents. From 2019 to 2021, which we understood was the most recent year for which data was available, Severn Trent had overall EPA ratings of four stars (out of a possible four), which meant that they were classed as an ‘industry leading company’. Therefore, although there were areas of performance below target, their recent overall environmental performance was good.

Because their overall environmental performance did not contradict the overall impression of the ad, we did not consider that their history of releasing sewage into the environment was material information that needed to be included in the ad to prevent viewers from being misled. We therefore concluded that the ad was unlikely to mislead.

Flushing out the issues

The general themes of these rulings, the recent rulings involving energy companies and previous significant rulings against HSBC and others, are similar: a company spotlighting some particular benefit, which the ASA considered would imply some broader/general/overall positive environmental contribution.

The difference between these two cases, despite the claims and issues being very similar, despite both ads being approved in advance by Clearcast, and despite both ads omitting information about the advertiser's overall impact on the environment, is that:

one advertiser was a relatively poorly-performing company compared with industry standards (and relative to other companies in the same sector), with a few too many recent instances of financial penalties and sanctions for negatively impacting the environment, so the ASA ruled it misleading for them to leave out a soul-bearing confession to that effect;
the other advertiser was a relatively high-performing company compared with industry standards (and relative to other companies in the same sector), with few recent instances of penalties and sanctions imposed on it for negatively impacting the environment, so the ASA considered it acceptable for them to leave out a soul-bearing confession.

So, one lesson is that one has to look behind the claims at the companies that want to make them!

Otherwise, the ASA is going to pour cold water on your ad, and turn off the taps because the ad will have to be pulled or amended.

The tide is coming in on misleading green claims. Woe betide anyone who thinks it's easy and low risk to make green claims.

There is more guidance in the pipeline from CAP and the ASA, in the meantime the slew of rulings should help us flush out the issues, identify the undercurrents, and pinpoint the ASA's high water mark!