Greenwashing update - The turbulent story of Virgin Atlantic Flight 100…

Speed read

•  On 28 November 2023, Virgin Atlantic Flight 100 (the “Flight”) flew from London Heathrow to New York JFK using 100% sustainable aviation fuel (“SAF”).

•  The Flight was run in response to a competition launched in 2022, by the UK Department for Transport (“DFT”), to “support industry to achieve the first net zero transatlantic flight on an aircraft using 100% sustainable aviation fuel within one year”.

•  The Flight represented a significant milestone in the journey towards making aviation more sustainable, by helping to demonstrate that it can be safe to fly a standard commercial aircraft using 100% SAF (standards at the time only permitted a maximum 50% SAF to be used on commercial flights).

•  On 24 November 2023, Virgin Atlantic ran the following advert on the radio:

“On the 28th of November, Virgin Atlantic’s Flight 100 will take to the skies on our unique flight mission from London Heathrow to JFK to become the world’s first commercial airline to fly transatlantic on 100% sustainable aviation fuel. When they said it was too difficult, we said: challenge accepted. Virgin Atlantic Flight 100. See the world differently” (the “Advert”).

•  No tickets were advertised or sold for the Flight which did not carry commercial passengers – it was a one-off research and development flight.

•  The Advertising Standards Authority (“ASA”) received five complaints from individuals who suggested that the claim “100% sustainable aviation fuel” gave a misleading impression of the fuel’s environmental impact.

•  On 7 August 2024, the ASA upheld the complaints[1] (the “Decision”), finding that “a significant proportion [of people who heard the advert] would understand the claim “100% sustainable aviation fuel” to mean that the fuel used was 100% sustainable” and noting that most listeners “were unlikely to be aware of the extent to which fuels described as sustainable aviation fuel still had negative environmental impacts, and in what ways.”

•  The ASA has instructed Virgin Atlantic “to ensure that future ads which referred to the use of sustainable aviation fuel included qualifying information which explained the environmental impact of the fuel.”

•  Companies need to be careful to explain the full environmental impact of so-called ‘sustainable’ fuels (and potentially other forms of energy) in adverts, even where the terminology is broadly used by governments and other regulatory bodies.

•  Wider comments made as part of the Decision may also have broader implications for the qualifications that need to be made when advertising sustainability characteristics of certain types of products or services.

Introduction – preparing for take-off…

The ASA has a challenging and important job in identifying and preventing advertising which gives a misleading impression about the sustainability characteristics of a particular company, product or service (i.e. “greenwashing”).

The ASA has a strong track record of identifying greenwashing and has issued numerous excellent decisions over the last few years challenging these practices – including in the aviation sector, which has an unfortunate history of making claims that have rightly been called out as greenwashing in the UK, Europe and around the world.

Before offering a few observations on certain aspects of the Decision, it is useful to briefly reflect on the relevant context.

•  Aviation is responsible for around 3% of global greenhouse gas emissions. The sector is commonly referred to as ‘hard to abate’ (i.e. a sector where achieving net zero will be particularly challenging), largely because of the lack of viable alternatives to aviation fuel.

•  The term SAF is widely used by governments, industry, regulators, and other bodies involved in the aviation space around the world. It is used by the UK Government also, including by the DFT in the challenge that they issued the aviation industry, noted above.

•  SAF is the primary tool by which governments and other relevant bodies are currently proposing the sector should decarbonise. According to the International Energy Agency:

“Sustainable aviation fuels are critical to decarbonising aviation… Increasing SAF use in aviation to 10% by 2030 in line with the Net Zero Scenario will require a significant ramp-up of investment in capacity to produce SAF”.[2]

Gaining altitude…

There are many aspects to the Decision which stand out.

•  Virgin Atlantic emphasised that the ad’s wording “…become the world’s first commercial airline to fly transatlantic, on 100% sustainable aviation fuel” mirrored the terms used by the DFT in its competition invitation. This was accepted by the ASA.

•  Whilst the ASA acknowledged that the term SAF was widely used by governments and other bodies, and that most consumers were “likely to be aware that aviation was a high carbon-emitting sector”, they were concerned that consumers “were unlikely to be aware of the extent to which fuels described as sustainable aviation fuel still had negative environmental impacts, and in what ways.”

•  One particularly noteworthy section of the Decision reads as follows:

“we nonetheless understood that sustainable aviation fuel still produced significant emissions over its lifecycle… and that its production was not without other potentially negative environmental impacts in the longer term. For example, this included the diversion of biofuels from other sectors which might then revert back to fossil derived fuels, and the impact of land use changes, both direct and indirect.” (emphasis added)

Adjusting the flight path…

The Decision makes clear that, in essence, the ASA does not consider SAF to be ‘sustainable’; at least as the term is used in the context of advertising.

Airlines that wish to promote their use of SAF will need to carefully explain its full environmental impact, including in-flight emissions from combustion of the fuel, and the wider negative impacts associated with the production process.

The ASA did note in the Decision that the specific SAF used for the Flight was calculated to have delivered savings of 64% in greenhouse gas emissions compared to fossil-derived aviation fuel over its full lifecycle, but noted that this “was not stated in the ad”. It may be that this addition would have gone some way towards addressing the ASA’s concerns in this case, albeit it seems unlikely given the broader commentary in the Decision regarding SAF that this would, in itself, have been sufficient to address their concerns.

For other businesses, the Decision is a reminder that advertising needs to take a holistic view of all potentially negative environmental impacts associated with a product when making sustainability claims, including those associated with land use changes.

Unexpected turbulence…

The Decision risks setting a number of potentially unfortunate precedents, which businesses will now need to keep in mind when reviewing marketing campaigns for potential greenwashing risk.

Firstly, it suggests that terminology which is widely used, including by governments and relevant regulators, cannot necessarily be used in a consumer-facing context without further clarification and explanation.

This potentially risks broader implications. It is not the case, for example, that even 100% renewable electricity (a common term) is without broader environmental impact; solar panels and wind turbines (to take just two examples) both require materials which are mined, energy to manufacture and land for their operation, before they produce ‘renewable’ electricity. There is also the impact of the infrastructure that connects these facilities to the grid to consider, and the long-term impact of servicing and maintaining these facilities. Do these factors need to be noted in adverts for products or services produced using renewable electricity, as part of the “other potentially negative environmental impacts” of renewable electricity?

By way of a similar example, if a product were manufactured using ‘green hydrogen’, would the manufacturer now be expected to explain, in sufficient detail for the majority of consumers to understand, the wider land use or other potential environmental impacts of the production of green hydrogen as part of the messaging?

Particularly concerning is the statement in the Decision that one of the potentially negative impacts of the aviation industry using SAF “included the diversion of biofuels from other sectors which might then revert back to fossil derived fuels”. It is unclear how companies are to understand this comment or account for it in other advertising more generally. There are many ‘green’ fuels, such as biofuels or green hydrogen, where demand currently vastly outstrips available supply. The same is true, in many places, of renewable electricity. It seems strange to suggest that a potentially negative impact of a business using such a fuel is that other businesses might then have to “revert back to fossil derived fuels” because of a lack of supply of the greener alternative. Whilst it seems unlikely that the ASA intended to suggest that the risk of this should be noted as a potential negative environmental impact when making sustainability claims involving the consumption of green or sustainable fuel products, the intention behind this particular statement is at least unclear.

A bumpy landing…

An important aspect of achieving the global transition towards a net zero economy must be a regulatory environment in which businesses can – in an appropriate manner – celebrate genuine achievements on their sustainability journey. This is particularly important in hard to abate sectors, where decarbonisation presents a particularly complex challenge that will require significant investment from businesses, many of whom are already struggling to balance competing economic pressures.

In circumstances where (i) no tickets were sold for the Flight; (ii) the Advert did not claim that flying generally was (or was becoming) sustainable or even that the Flight itself had no negative environmental impact; and (iii) the language used in the Advert mirrored language used by the UK Government and others, it might be considered unfortunate that the ASA felt the need to issue the Decision, particularly in circumstances where it had received a mere five complaints. Some of the wider comments in the Decision also risk creating broader difficulties, which might disincentivise businesses from investing in sustainable products and services because of legitimate concerns that they will struggle to promote those offerings without attracting particularly rigid regulatory scrutiny if the ASA were to receive a mere handful of complaints.

The ASA is responsible for a critical task in holding companies to account for greenwashing, and it has a strong and positive track record in that regard. Whilst it is noted that these decisions are often complex and finely balanced, the case can be made that it would not be inappropriate for the ASA to exercise a little discretion where businesses are making a genuine contribution towards a more sustainable future, particularly when dealing with one-off or unique situations.

The Flight was a significant occasion in the complex journey towards decarbonising aviation, and Virgin Atlantic should be commended for rising to the challenge issued by the DFT and demonstrating that 100% SAF can be used safely on long-haul flights. The Decision introduces an unfortunate dose of turbulence into that achievement, which feels somewhat unnecessary (and perhaps even counter-productive) in the particular circumstances of this specific case.

So, dearest passengers. Please return to your seats and ensure that your seat belts are fastened. There’s a bumpy ride ahead…

[1] https://www.asa.org.uk/rulings/virgin-atlantic-airways-ltd-g23-1224417-virgin-atlantic-airways-ltd.html

[2] https://www.iea.org/energy-system/transport/aviation