New report provides legal ground for ending high-carbon advertising

Badvertising New Sweden’s report. Available to download in Swedish here.

This article is based on a loose translation of an original oped published in the Swedish newspaper ETC: https://www.etc.se/debatt/fossil-reklam-aer-alltid-vilseledande 

Today, the Swedish advertising authority - the Advertising Ombudsman (RO) - holds its first seminar on so-called fossil fuel advertising. It is very promising that advertisers and authorities are now acknowledging the scale of the issue. Many more voices across the world are actively calling for national and international regulation of advertising for fossil fuels and products that rely extensively  on them, mainly cars and air travel. The ban on tobacco advertising is often used as a model for a ban on fossil advertising.

Through advertising, we are exposed to ubiquitous propaganda to buy more and bigger cars, fly further and more often and, by doing so, justify the continuous use of  fossil fuels. In this storm of carefree advertising that strives for business-as-usual, the warnings of scientists, politicians and authorities about an impending climate collapse are drowned out.

In order to avert the most catastrophic impacts of climate change  and to meet the international, EU's and Sweden's climate goals, greenhouse gas emissions  need to decrease sharply this decade. To do so, behaviours must change, not least in the transport sector. Innovation and technological development are not enough. Those of us who live in the richer parts of the world need to change our lifestyles, for example by driving less and reducing our air travel.

However, such a change is countered by advertisements that normalise our dependence on fossil fuels. By consistently portraying the consumption of fossil fuels, cars and air travel as acceptable and normal - even desirable - advertisers hide the fact that the purchase and use of these high-carbon goods and services are fueling the climate emergency and that their use must be drastically reduced in the near term.

According to the EU directive on unauthorised commercial activities, the Swedish Marketing Act and the International Chamber of Commerce’s (ICC) rules, advertising is misleading and prohibited if it:

1) provides false or misleading information, or withholds information about the product that is essential, and

2) such act or omission can be assumed to influence the consumer's business decision.

Clemens Kaupa, assistant professor in EU law at the Vrije Universitet in Amsterdam, believes that fossil advertising meets these criteria and should thus already be subject to a ban. Advertising promotes  a misleading image of these products and withholds essential information about them, which influences the consumer's decision. This is contrary to current legislation.

The problem is that the Swedish Advertising regulator (RO), the Swedish Consumer Agency and other authorities do not apply the legislation already in place, but instead pay excessive attention to insignificant details. You only cut fossil advertising that makes gross overstepping and let the rest pass as "normal".

Badvertising Sweden just released a new report: The climate, advertising and the law, which is based on Kaupa's research and shows that the most important factor in misleading consumers is not the content of the advertising, but the advertising itself - its very existence. The presence of fossil advertising in public spaces serves as social proof that the production and use of high-carbon products is acceptable and normal, despite the fact that they are demonstrably damaging to the climate and public health in an unacceptable way.

It is difficult to imagine fossil advertising, regardless of its design, that is not essentially misleading, just as it is quite impossible to imagine neutral tobacco advertising. Authorities and the market's self-regulatory bodies need to adopt a holistic perspective on fossil advertising and in their supervisions apply the law in an effective way, instead of clawing at meaningless  details.

Fossil advertising is a fundamental driver of the climate crisis we now find ourselves in. In the report, we argue there are two primary ways to tackle the issue: through a more holistic interpretation and effective oversight within today's advertising regulations or through proposing  new legislation. What will advertisers prefer?