FTC is Pursuing Green Marketing Claims

The Federal Trade Commission announced last Friday that it approved a final order settling charges that American Plastic Manufacturing, Inc. made misleading and unsubstantiated biodegradability claims for its plastic products.  The final order is the fourth resulting from a set of “green” marketing cases the FTC first announced in October, 2013.

The FTC alleged that APM advertised its plastic shopping bags on its website as biodegradable. 

Under the FTC’s final order, APM is prohibited from making biodegradability claims unless they 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. 

In order to make biodegradability claims, the FTC takes the position that companies must state the time required for complete biodegradation in a landfill or the time to degrade in a disposal environment near where consumers who buy the product live. Alternatively, companies may state the rate and extent of degradation in a landfill or other disposal facility accompanied by an additional disclosure that the stated rate and extent do not mean that the product will continue to decompose or decompose completely. This is a high bar.

In another FTC green marketing case, N.E.W. Plastics Corp., of Wisconsin, has agreed to stop making allegedly unsubstantiated claims about the recycled content and recyclability of two of its brands of ‘plastic lumber’. The company claimed that its “Evolve products are made from 90 percent or more recycled content”, and that its “Trimax products are made from mostly post-consumer recycled content”.

The fake plastic lumber products were used as trim and decorative moldings, including in green buildings, as well as for outdoor decking.

The proposed consent order prohibits N.E.W. from making any statements about the recycled content, post-consumer recycled content, or environmental benefits of any product or package unless they are true, not misleading, and are substantiated by competent and reliable evidence, which for some claims must be scientific evidence.

In an earlier blog post I wrote that the FTC announced in October, 2013 it would begin to ramp up enforcement of environmental claims. It is clearly doing so. The FTC does provide guidance to businesses on environmental claims, including its interpretations of federal law that at times fly in the face of the free flow of commercial information, in its Green Guides. This law firm regularly assists businesses with green claims that can be made with certainty.

The Green Guides and much more will be the subject of the educational session I am presenting tomorrow morning, Tuesday, May 6 at 8:00 a.m., with Ida Cheinman for USGBC Maryland in Baltimore. There is still time to register today for Marketing Green Building: A Competitive Advantage Without Greenwash.   

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