It’s Not Easy Bein’ Green

Oh, yeah? Prove it!” That’s what the Federal Trade Commission (FTC) wants from companies whose products or packaging purport to confer planet-friendly benefits.    

“It’s no secret that consumers want products that are environmentally friendly, and that companies are trying to meet that need,” says Jessica Rich, director of the FTC’s Bureau of Consumer Protection. “But companies that don’t have evidence to support the environmental claims they make about their products erode consumer confidence and undermine those companies that are playing by the rules.”

The FTC’s mission includes preventing fraudulent, deceptive and unfair business practices, as well as providing consumers with information to help recognize and avoid such practices. For starters, the FTC wants marketers to avoid using “green” or “eco-friendly,” and similar descriptive terms. “Very few products, if any, have all the attributes consumers seem to perceive from such claims, making these claims nearly impossible to substantiate,” according to an FTC press release.

Late last year, the FTC showed its teeth on false and misleading marketing claims, beginning with multiple enforcement actions, including one that imposed a $450,000 civil penalty, and several that, for the first time, addressed biodegradable plastic claims. The crackdown followed the agency’s revision of its Guides for the Use of Environmental Marketing Claims; this is published to help businesses promote their products accurately, providing guidance as to what constitutes deceptive and non-deceptive claims [77 Fed. Reg. 62,122 (Oct. 11, 2012) codified at 16 CFR Part 260]. The companies were charged with falsely claiming that plastics treated with additives are biodegradable, biodegradable in a landfill, biodegradable in a certain timeframe, or shown to be biodegradable in a landfill or that various scientific tests prove their biodegradability claims. The FTC also alleged that the companies lacked reliable scientific tests to back up these claims.

In January, the FTC, by a 4-0 vote, approved final orders settling charges against three of the companies. More recently, the FTC, again by unanimous vote, approved a final order settling charges that American Plastic Manufacturing Inc. made misleading and unsubstantiated biodegradability claims for its plastic products [FTC File No. 122-3291, May 2, 2014].

Under the FTC’s final order, which is similar to orders in the other cases, American Plastic is prohibited from making biodegradability claims unless the representations are true and supported by competent and reliable scientific evidence. The company must have evidence that the entire plastic product will completely decompose into elements found in nature within one year after customary disposal (defined as disposal in a landfill, incinerator or recycling facility) before making any unqualified biodegradable claim.

To make qualified claims, companies must state the time required for complete biodegradation in a landfill or the time to degrade in a disposal environment near the places where the consumers who buy the product live.

Alternatively, the companies may state the rate and extent of degradation in a landfill or other facility where the product is customarily disposed of, accompanied by an additional disclosure that the stated rate and extent do not mean that the product will either continue to decompose or decompose completely [16 CFR § 260.8(d)].

The FTC has updated its “Green Guides” periodically to keep pace with developments in environmental science and the evolving “green” marketplace. Notably, the latest version contains new provisions on certifications and seals of approval—which now must be fully explanatory—and addresses what marketers can say about “carbon offsets” and “renewable materials.”

Some observers have expressed hope that the FTC will take the next logical step by tackling the terms “sustainable,” “natural” and “organic.” Surely, consumers can be as easily confused or deceived by the unchecked use of these labels and concepts. However, the FTC wants to steer clear of guidance that may invade the turf of the Food and Drug Administration or other federal regulators.

Barry Shanoff is a Rockville, Md., attorney and general counsel of the Solid Waste Association of North America.