UK’s ASA Roasts Oatly’s Climate-Friendly Claims | Kelley Drye & Warren LLP

If you’re among the over 40% of U.S. consumers who vowed to change how you eat in the new year, fitting into pants that don’t have elastic waistbands may one of numerous motivators.  For many consumers, climate considerations are increasingly among the dietary priorities, and 2022 looks likely to bring plates filled with climate-friendly chicken or one of the many plant-based-protein options, which have grown in market share over 50% in the last two years.  As with all environmental claims, though, precise claim language and adequate disclosures are paramount.  One enforcement matter from across the pond is a helpful reminder of these ad law basics.

Need Help Talking To Dad About Milk?

The UK’s Advertising Standards Authority (ASA) recently investigated advertising by Oatly for advertisements that allegedly overstated the environmental benefits of the popular oat-based beverage.  Here’s an example:

The first TV ad, seen on January 16 2021, featured a man sneaking into his home and putting a bottle of milk in the fridge. He was interrupted by his son who said, “What have we here? Cow’s milk? Really?” Large, on-screen text stated “NEED HELP TALKING TO DAD ABOUT MILK?”. Smaller text at the bottom of the screen stated “Oatly generates 73% less CO2e vs. milk, calculated from grower to grocer. To verify see www.oatly.com/helpdad”.

The ASA found the “Need Help Talking to Dad About Milk” ad to be misleading not because the life cycle assessment conducted to support the claims was not sufficiently robust to support a benefit.  Rather, the substantiation was limited to Oatly’s Barista Edition but the ad and the disclosure could reasonably be understood to apply to all Oatly products.  Because of this gap, the ASA found the ads misleading.

What’s the takeaway?  The ASA’s decision, which also covers four other ads, is worth a read by any food company considering how to substantiate environmental claims.  There are valuable insights from a technical perspective, including detailed discussion of life cycle analyses for Oatly’s product as well as the dairy, meat, and transportation industries.

There is also a focus on less complex but equally important features for food marketers – such as the consumer understanding of what is included in references to the “meat industry” or the “dairy industry”.  Because consumers could interpret “dairy and meat” more narrowly than how Oatly did, the ASA found the claim “Today, more than 25% of the world’s greenhouse gases are generated by the food industry, and meat and dairy account for more than half of that” to be misleading.

Stepping back, the biggest issue with Oatly’s advertising wasn’t that the company didn’t have robust substantiation for some claims.  It appears that they did.  The claims reasonably conveyed didn’t match the limitations and definitions in their substantiation, though, and this wasn’t made clear to consumers.

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