Overview of the guiding principles for green marketing regulations Brinsley Dresden Lewis Silkin LLP 18 th September 2009

Topics to be discussed What are the sources of legal and regulatory control? What are the main requirements of those laws and regulations?

What are the sources of regulation? ISO 14021: International Standard on Environmental labels and declarations International Chamber of Commerce – Advertising & Marketing Communication Practice National laws National Self-Regulatory Organisation Code requirements

ISO The International Standard relating to self-declared environment claims in ads Often referred to in other codes Strong presumption that adherence to ISO will result in compliance with other applicable laws and regulations But need to consider other applicable laws and codes too

Definitions from ISO “Environmental Claim” = any statement, symbol or graphic that indicates an environmental aspect of a product, a component or packaging Can be on product, packaging, in literature, advertising, PR, telemarketing, digital or electronic media

Best Practice Guidelines Considerable overlap between codes What follows is attempt to consolidate principles into single set of best practice guidelines Adherence to these principles should result in compliance

General Principles All advertising should be legal, decent, honest and truthful No advertising should mislead, or be likely to mislead, by inaccuracy, ambiguity, exaggeration, omission or otherwise

General Principles Advertisers must hold documentary evidence to prove all claims, whether direct or implied, that are capable of objective substantiation Advertising should not encourage or condone behaviour that is or may be damaging to the environment

Environmental claims should.... be specific about the environmental aspect that is claimed; be unambiguous and unlikely to result in misinterpretation; be true in relation to the entire life cycle of the product; and be reassessed & updated as necessary

Environmental claims should not... suggest environmental benefits that do not exist nor exaggerate the environmental aspects of a product suggest that they are based on recent advances or modifications if they are based on pre-existing but previously undisclosed aspects of the product

Unacceptable Claims Vague or non-specific claims or claims which broadly imply that a product is environmentally beneficial or benign, e.g. ozone friendly Many claims relating to sustainability (because everything has a impact on the environment to some degree)

Unacceptable Claims Claims based on the absence of a harmful chemical or damaging effect, if the product category does not generally include the chemical or cause the effect Claims based on the absence of harmful constituents if the product contains other equally harmful elements

Unacceptable Claims Spurious ‘free from …’ claims (unless there is no more than a trace element of the specified substance), e.g. “CFC free” after these have commonly been removed Claims that cannot be verified without access to confidential business information (because not verifiable)

Substantiation & verification Advertisers should implement evaluation measures to verify environmental claims before publication Advertisers should fully document their evaluation and the documentation should be retained for the period that the product is on the market and for a reasonable period thereafter

Substantiation & verification Absolute and superiority claims (e.g. the most fuel efficient engine on the market) require a higher threshold of substantiation than relative claims Should be used with considerable caution but may be acceptable if they can be substantiated

Substantiation and verification The minimum information that should be retained includes: Identification of the standard or method used (particularly if the claim involves a comparison with other products) Documentary evidence

Substantiation and verification Test results (if applicable) and details of testing body Evidence that the claims will remain accurate during the period that the product is on the market and for a reasonable period thereafter, taking into account the life of the product

Explanatory Statements If a claim is likely to result in misunderstanding, the claim should be accompanied by an explanatory statement Generally speaking, only statements which are valid “in all foreseeable consequences with no qualifications” can be made without an explanatory statement

Explanatory Statements The explanatory statement shall be of reasonable size and in reasonable proximity to the relevant environmental claim

Language Avoid use of extravagant language Avoid bogus scientific terms Avoid confusing scientific terms N.B. Some countries also have requirements about use of local national language in advertising

Use of specific claims ISO Code, ICC Code and have specific rules about several terms which commonly appear in environmental claims These terms may only be used if certain criteria are fulfilled And/or if they are suitably qualified

Use of specific claims Compostable Degradable Designed for disassembly Extended life product Recovered energy Recyclable Recycled content Reduced energy consumption Reduced resource consumption Reduced resource use Reduced water consumption Reusable and refillable Waste reduction

Any Questions? Brinsley Dresden Lewis Silkin LLP