ASA Ruling on HSBC Greenwashing – Is the tide turning on greenwashing

On 19 October 2022, the Advertising Standards Authority’s (‘ASA) handed down a landmark ruling in which it ruled that HSBC had failed to put its climate investments in the broader context of its contribution to carbon dioxide and greenhouse gas emissions. The decision can be accessed at the footnote below.[1]

This blog post considers that ruling and the impact it might have.

Background

The subject of the ASA ruling were two posters for HSBC. The posters were seen on bus stops in Bristol and London in October 2021:

1. The first poster featured an aerial image of waves crashing on a shore with text that stated “Climate change doesn’t do borders. Neither do rising sea levels. That’s why HSBC is aiming to provide up to $1 trillion in financing and investment globally to help our clients transition to net zero”. (Ad (a).)

• The second poster featured an image of tree growth rings with text that stated “Climate changes doesn’t do borders. So in the UK, we’re helping to plant 2 million trees which will lock in 1.25 million tonnes of carbon over their lifetime”. (Ad (b).)

The ASA received 45 complaints from those challenging whether Ads (a) and (b) were misleading because they omitted significant information about HSBC’s contribution to carbon dioxide and greenhouse gas emissions.

HSBC’s response

HSBC argued that the claims in Ads (a) and (b) highlighted two tangible and specific short-to-medium term initiatives, capable of quantifiable measurement, and would not be seen as commenting, in a broader sense, on their green credentials or environmental contribution. The ASA disagreed with this.

Ad (a)

HSBC UK Bank plc said it had been making the claim in Ad (a) since 2020 and aimed to meet the ambition to provide financing and investment globally to help some of its clients transition to net zero by 2030. HSBC made a number of points in response to the criticism of Ad (a) including:

• HSBC’s Climate Strategy was consistent with Science Based Targets Initiative (‘SBTI’): A report by the SBTI outlined that financial institutions needed to align financing with a 1.5°C net zero by 2050 pathway and set interim 2030 targets. HSBC said their Climate Strategy was consistent with those aims, including their 2030 financed emissions reduction targets for high-emitting sectors. This argument is of note because it focusses on HSBC’s investment and financing ambitions only, there was no qualification provided regarding its broader investment or financing strategies.

• Policies of phasing down fossil fuels: HSBC explained that their policies for phasing-down fossil fuel financing were also aligned with the approach recommended by the Glasgow Financial Alliance for Net Zero (‘GFANZ’), the UN Principles for Responsible Investment, and the International Energy Agency (‘IEA’). The GFANZ had a number of membership criteria, including setting 2030 interim targets for decarbonisation, taking immediate action to begin decarbonisation, setting and publishing a net zero strategy, and adhering to strict restrictions on the use of offsets.

At heart of HSBC’s arguments was the transition to net zero. HSBC said that the financing of greenhouse gas-emitting industries was required during the transition to net zero, and so their continued financing of those industries was not in conflict with the aims of a transition to net zero. They highlighted that the IEA’s 2021 report on net zero by 2050 outlined that at that stage the world would still need 20% of current natural gas production, and 25% of current oil production. Fossil fuels would play a critical role in a secure energy transition up to 2050 and would require financing.

Ad (b)

In respect of the claim made in Ad (b), HSBC outlined that it had entered into a four-year partnership with the National Trust, worth £4 million, to create 2,000 hectares of carbon-rich woodland. Under that partnership it endeavoured to plant two million trees by 2025, which according to the Woodland Carbon Code, and based on the average 100-year lifespan of a tree, would lock in 1.25 million tonnes of carbon. The trees would be at various sites, and 90,000 had already been planted since the partnership’s inception.

ASA Ruling

The ASA upheld the complaints made against Ads (a) and (b).

The ASA emphasised that the CAP Code – the UK Code for Non-Broadcast Advertising and Direct & Promotional Marketing (12^th Edition)[2] required that the basis of environmental claims must be clear and that unqualified claims could mislead if they omit significant information.

The ASA held that:

• Consumers would understand the claims made by HSBC to mean that HSBC was making, and intended to make, a positive overall environmental contribution as a company.
• Additionally, consumers would understand that HSBC were undertaking an environmentally beneficial activity by planting trees which would make a meaningful contribution towards the sequestration of greenhouse gases in the atmosphere.
• ASA said its conclusion was strengthened by the use of imagery from the natural world, and in particular Ad (a)’s image of waves crashing on a beach, contributed to that impression.

These points underline the importance of companies ensuring their claims of environmental benefit are not overly narrow and reflect the company’s overall environmental impact.

The ASA ruled that HSBC’s advertisements breached the following rules of the CAP Code:

• Rule 3.1 (Misleading advertising): marketing communications must not materially mislead or be likely to do so.
• Rule 3.3 (Misleading advertising): a summary of which is that marketing communications must not mislead the consumer by omitting material information.
• Rule 11.1 (Environmental claims): the basis of environmental claims must be clear. Unqualified claims could mislead if they omit significant information.

The difficulty in assessing whether an advertisement is misleading is underlined by the analysis that the ASA provided of HSBC’s investments. HSBC’s commitment to invest $1 trillion globally to help its clients transition to net zero in 2020 formed one of the main strands in its 2021 Group Annual Report and Accounts (‘the Annual Report’). However, the Annual Report also indicated that HSBC’s current financed emissions – emissions related to the customers it financed – stood at the equivalent of around 65.3 million tonnes of carbon dioxide per year for oil and gas alone based on the information available at the time the report had been prepared. The ASA understood that figure was likely to be much higher once other carbon-intensive industries such as power and utilities, construction, transport, and coal mining had been analysed and included. That analysis underlines the difficulty both in quantifying environmental impact but also emphasises that a company’s efforts to reduce environmental impact must be put in the context of its entire impact – a company cannot ‘cherry pick’ certain aspects of its business for advertising.

Commentary on ASA Ruling

We are entering a new phase in greenwashing and green hushing claims. There are some industries which are obviously at risk, for example the aviation industry. That is reflected by the fact that this year the first greenwashing aviation lawsuit was filed against KLM. A claim was filed in the Netherlands, against KLM, by Fossielvrij Netherlands and Reclame Fossielvrij over allegedly misleading marketing promoting the sustainability of flying.[3] The case concerns KLM’s advertising which encouraged customers to “fly responsibly” and purchase carbon credit to offset or reduce the environmental impact of flight. The ASA Ruling therefore offers another cautionary tale of the perils of companies seeking to portray their industry or product as carbon neutral.

Of general interest is the point made by the ASA that the ASA did not think: “consumers would understand the intricacies of transitioning to net zero”. That statement reflects the complexity of this developing area and therefore the responsibility that companies owe to ensure their advertising and claims are accurate.

The ASA Ruling is of note because it is one of the first greenwashing decisions from the ASA in the financial sector marketing – whereas previous decisions have largely focused on consumer products. This is partially reflected in the amount of time it took to reach a conclusion – over a year since the advertisements were seen on bus stops in London and Bristol. It underlines the fact these decisions can be very complex. This is in no small part due to the fact that it is more difficult to assess environmental claims in the context of complex financial products or where a company’s portfolio may have a diverse range of products, financial or otherwise.

However, what the HSBC ASA Ruling has evidenced is that industries that have an environmental impact, which potentially includes most if not all industries, must consider the claims they make in advertising their products or services.

Given the increased emphasis on and interest in environmental impacts, many companies will feel the temptation to emphasise the ways in which their brand is seeking to make a positive contribution to the environment. It is of note that a central part of HSBC’s defence of its advertising was that it believed the claims in the advertisements highlighted two tangible and specific short-to-medium term initiatives which were capable of quantifiable measurement. HSBC did not consider that it was commenting, in a broader sense, on their green credentials or environmental contribution. The ASA disagreed. There is a lesson in that mistake for many.

Photo credit: Kelly Sikkema at Unsplash.

[1] https://www.asa.org.uk/rulings/hsbc-uk-bank-plc-g21-1127656-hsbc-uk-bank-plc.html

[2] Available here: https://www.asa.org.uk/static/47eb51e7-028d-4509-ab3c0f4822c9a3c4/The-Cap-code.pdf

[3] See for example: http://climatecasechart.com/non-us-case/fossielvrij-nl-v-klm/