The UK Advertising Standards Authority are a zealous bunch*. Why?
Because saying, in any marketing context, Zero Carbon Homes, Zero Carbon Schools, Zero Carbon Offices is now BANNED in UK.
The ASA have ruled that NOTHING which is manufactured can ever claim to be zero carbon.
Today Britain is the ONLY country in the whole of the world where marketing Zero Carbon Homes (a Government flagship green policy) is banned.
[Update of 24 May 2012: ASA have stated to some Solartwin customers. “In general, we always remain open to considering concerns about the ASA’s position and application of relevant Code rules.” It suggests that a door might be opening, just a crack!]
This is the funny-peculiar (as opposed to funny-haha) knock-on effect of a controversial decision by Sir Hayden Phillips, the Independent Reviewer of the arguably “Z**o Logic” UK Advertising Standards Authority to uphold a ban imposed last year on Solar Twin Ltd from saying “Zero Carbon Solar” with reference to solar water heating panels which were PV pumped and which therefore emitted no carbon during operation and which even repaid the carbon used in their manufacture 21 times, according to a comprehensive academic study. Here is our review request. Here is our immediate reaction to the ban in 2011. Here is a reaction after a week of hell.
At a micro-level, Solar Twin Ltd have reached the end of the line regarding challenging the ASA’s ban on our “Zero Carbon Solar” claim. Unfortunately, ASA’s Independent Reviewer, Sir Hayden Phillips, has not upheld our request for the ASA’s decision to be reconsidered. So the original ASA ban still stands.
Its full implications for the UK renewables industry, and government policy to build only Z**o C*rb*n Homes in 2016, and on the Zero Carbon Hub are staggering…
At a macro-level, based on what Sir Hayden Phillips writes, nothing which is manufactured can ever claim to be zero carbon, even if, as in the case of our PV pumped solar heating product, it emits no CO2 during its operation and even though it breaks even on its manufacture carbon footprint in 1.2 years and then repays it many times, year on year after this time. In case this is of interest, here is a video of our Ecobuild talk on this very topic of solar installations going, in our view, far far beyond Z**o Ca**on.
Two things in Sir Hayden’s adjudication seem odd. The first is that Sir Hayden states that ASA apparently did not need to bring in any technical expertise on this matter. The second, and again it may, relate to technical expertise, is that Sir Hayden writes that our preferred LCA definition is narrower than the ASA’s, when we actually think it is wider.
What next? We still (and usually secretly) consider our product to be far better than zero carbon but I now cannot even say that it is zero carbon. However I am doing so today with the grovelling proviso that ASA totally disagree with us and that the ASA, despite apparently lacking appropriate technical expertise, do say that we are misleading the public when we say so. I really have done my very best and I am sorry to have let the renewable energy industry and UK’s thriving zero carbon home movement down.
The problem is that from today, the Zero Carbon Hub, our governments in UK, homebuilders and estate agents, are all totally banned from describing any home as a zero carbon home.
What’s next? Will ASA now come down, like a tonne of zero-ish-carbon bricks, upon the heads of the (dare I say it?) Zero Carbon Hub. Will they now aim for the Z**o Carbon Hub’s government funders, DEFRA?
Anyone building and selling (dare I say it? yawn) Zero Carbon Homes will be fair game for the ASA’s inexpertise! No estate agent will ever be allowed to sell a Z**o Carbon Home ever again.
What do you think of the ASA’s decision to ban zero carbon everything? You can actually tell them here: phone them on 020 7492 2222 or scroll down and fill in the box at the bottom of this page.
Readers may want to look at the small print, so attached is Sir Hayden Phillips’ review document. I have highlighted the main pertinent sentences and I have deleted two non-technical paragraphs because they are not relevant.
Barry Johnston, Managing Director, Solar Twin Ltd, 50 Watergate Street, Chester CH1 2LA.
Letter from: The Independent Reviewer of ASA Adjudications
7th Floor North Artillery House 11-19 Artillery Row London SW1P 1RT Fax 020 7222 1504 Date: 26 March 2012
Dear Mr Johnston
ASA Case A11-169818: Request for Review
In your letter dated 16 January 2012 you asked me to review the ASA Council’s adjudication on a complaint made about your website advertising. The ASA told you of its adjudication on 5 December 2011.
I have now been able to examine the points set out in your statement of case together with all the previous papers on the ASA file relating to the investigation of and the adjudication on the complaint. This letter sets out my assessment and conclusions.
My study of the file has shown me that your statement of case repeats points made to the ASA during the investigation. I mention this, not to imply that I have not considered them carefully, but in order to explain that it is not my role as the Independent Reviewer to substitute my own judgement for that of the Council but to understand the basis for their decisions and to form my own view as to whether an advertiser has produced persuasive arguments that the Council has acted unfairly or unreasonably.
As your statement of case and the papers on the file make clear the central issues at stake in this review are how “zero carbon” should be defined and how consumers would be likely to interpret a “zero carbon” claim. I have seen the voluminous evidence you presented to the ASA. You maintain that that evidence shows that the carbon produced by your system is more than offset during its operation and that your claim was therefore justified. The ASA, however, considered that consumers would interpret the claim of “zero carbon” to mean that no carbon was produced in the whole life cycle of the product including its manufacture. The substance of your review request turns on this issue of definition and interpretation.
I see from the file that there has been, and is now, no difference of understanding between you and the ASA about what divides you. This is also clear from your statement of case when you say “On 28 September ASA notified us that this anonymous complainant had challenged the substantiation of our zero carbon claims, because they believed that ‘carbon was used in the manufacturing and transportation of the solar panels’, a fact that we have never bothered to dispute, because it is so plainly obvious that carbon is emitted as consequence of all manufacture processes and virtually all transport”. You go on to say that had you been able to claim “zero carbon” in this sense your company would by now be a famous multinational business. You believe therefore that the right definition is the narrower one which you say your claim is making and you also argue that most consumers would interpret the claim in the way you do and not as the ASA does.
I do have some sympathy for your appeal for a simpler narrower definition, uncomplicated by manufacturing and full life cycle considerations. But the Assessment section of the adjudication could not be clearer in explaining the counter-argument which the ASA has consistently pursued in previous relevant adjudications which is firmly based on the requirements of Code rule 11.4. It seems to me fair of the adjudication to cite the DEFRA research paper from February of last year called “Consumer understanding of green terms” which indicated that only 46% of people understood (i.e. were familiar with or very familiar with) the term zero carbon. It is, I think, quite generally accepted that the wider definition of “zero carbon” is a sensible measure in terms of public policy and the relevant Code rule reflects this. I know that you strongly disagree with the ASA’s view but the rationale for their view is certainly defensible and therefore not unreasonable. I cannot therefore find it substantially flawed.
In your statement of case you appear to say that even if one was to accept the ASA view, which I know you do not, your claim would be unlikely to affect a consumer’s transactional decision or be detrimental. However on the central issue at stake the advertising Code is clear. It says “Marketers must base environmental claims on the full life cycle of the advertised product unless the marketing communication states otherwise, and must make clear the limits of the life cycle”. Other areas of your website explain what you mean by zero carbon solar power and water heating but they do not do so in a way which removes the implication of the headline claim which is the one at issue. You go on to say “… what is the probability that consumers will actually buy our solar panels when they would normally not do so, because they believe we have innovated or perhaps majicked away the carbon that is normally … emitted … in their manufacturing and transport”.
Given your explanation of your intended interpretation of your claim I quite understand this expression of frustration, particularly when you say you have surveyed a large number of your solar panel customers and none replied expressing concern about being misled by your company. (I note, in passing, that this type of survey does not satisfy the ASA’s standards on the necessary objectivity of evidence.) However it is the case that, beyond any effect of an advertisement on an individual consumer’s behaviour, an advertisement that may mislead undermines the reliability of advertising standards on which the public depend and may give the advertiser of a misleading claim an unfair competitive advantage. So there can be detriment in general even if you contest that there is none in particular.
You also raise in your statement of case a number of questions under your headings of “Sloppy Position-Holding” and “Weak Evidence”, and introduce the issue of “zero carbon homes”. But, in the light of what I have said, these seem to me, with one exception, to be other similar routes of argument to persuade me to accept your interpretation of the ad’s headline claim. The exception is your invitation to me to form a view on the technical competence of the ASA. On that I can say from my experience of reviewing adjudications that the ASA does not pretend that its staff are technically expert in every subject area into which the investigation of a complaint about an advertising claim may take them, although a good deal of expertise in a number of subject areas has been built up over time. The ASA always seeks independent expert advice where that appears to be required. My conclusion is that this was not needed in this case as the principal issue was not one requiring complex technical analysis but one requiring a considered judgement about a defensible definition of “zero carbon” and then a question of interpretation. And on matters of interpretation the ASA, and its Council, have a wealth of experience.
[I have removed next two non-technical paragraphs: (a) the first restates that the identity of the complainant is non-competitive and (b) the second asks me to accept his assurance (without supplying any our requested documented evidence) that there exist no significant potential for conflicts of interest at ASA. These two paragraphs are not relevant to the technical content in any way, and this is why they have not been supplied. Apart from the removal of these two paragraphs, and my putting into bold (i) the key technical issue, that to ASA zero carbon means zero carbon manufacture, and (ii) an apparent acknowledgment that ASA may lack technical competence, the above is the full text.]
You will be disappointed, I know, but I am not persuaded on this occasion that the ASA Council has made an unreasonable or substantially flawed decision or that the process by which it was reached was substantially flawed. The review process under the advertising Code has therefore been completed and I shall proceed to close my file on the case.
(Sir Hayden Phillips GCB DL)
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