FTC Warns 15 Businesses that their Biodegradable Claims May be Deceptive

The Federal Trade Commission made public that its staff sent letters to 15 businesses last month warning that their biodegradable claims related to “oxodegradable” plastic waste bags may be deceptive. 

Oxodegradable plastic is supposedly made with an additive intended to cause it to degrade in the presence of oxygen. Most waste bags are intended to be deposited in landfills, however, where not enough oxygen likely exists for oxodegradable bags to completely degrade in the time consumers expect. Contrary to the marketing, these bags may be no more biodegradable than ordinary plastic waste bags when used as intended.

“If marketers don’t have reliable scientific evidence for their claims, they shouldn’t make them,” said Jessica Rich, Director of the FTC’s Bureau of Consumer Protection. “Claims that products are environmentally friendly influence buyers, so it’s important they be accurate.”

The FTC staff notified 15 marketers that they may be deceiving consumers based on the agency's 2012 revisions to its Guides For the Use of Environmental Marketing Claims (the Green Guides). Based on studies about how consumers understand biodegradable claims, the Green Guides advise that unqualified “degradable” or “biodegradable” claims for items that are customarily disposed in landfills, incinerators, and recycling facilities are deceptive because these locations do not present conditions in which complete decomposition will occur within one year.

The FTC says it advised the businesses that buyers understand the terms “oxodegradable” or “oxo biodegradable” claims to mean the same thing as “biodegradable.” Staff identified the 15 businesses as part of its ongoing review of green claims in the marketplace.

The businesses are requested to respond to the warning letters and tell the staff if they will remove their oxodegradable claims from their marketing or if they have competent and reliable scientific evidence proving that their bags will biodegrade as advertised.

Despite that the information in this blog post was provided by the FTC, the staff is not disclosing the recipients of the letters.

The FTC expressly noted when providing this information that businesses who did not receive a letter should not assume that their claims are fine. The FTC has since the 2012 release of the updated Green Guides stepped up enforcement of environment claims from the use of renewable energy to VOCs in coatings, and more. 

FTC To Ramp Up Enforcement of Environmental Claims

The Federal Trade Commission will begin to ramp up enforcement of deceptive environmental claims, according to Jessica Rich, director of the commission’s consumer protection bureau.

“A growing number of consumers are looking to buy green products and companies respond with green marketing. But sometimes what companies think green claims mean and what consumers think they mean are two different things,” Rich said at the Advertising Self-Regulatory Council conference last month. 

The coming crackdown on environmental claims follows an update of the FTC’s Green Guides last year that set forth the commission’s current views on environmental marketing to help business avoid making unfair or deceptive claims. 

That ramp up follows three lawsuits, the FTC announced in Federal Register notices in August, settled unsupported claims that products were free of volatile organic compounds.

According to the FTC’s lawsuit detailed in the Federal Register Notice Relief-Mart, falsely advertised its Biogreen memory foam mattresses don’t contain VOCs, have no VOC off-gassing, and don’t have the smell consumers often associate with memory foam.

In the second lawsuit against Essentia Natural Memory Foam Company,  the FTC charged that Essentia didn’t have appropriate proof to back up claims that its mattresses are VOC-free, have “[n]o chemical off-gassing or odor,” and unlike other memory foam mattresses that “can emit up to 61 chemicals”  are “free from all those harmful VOCs.”

In the third case, the FTC attacked Ecobaby Organics’ advertising mattresses as “chemical free,” with no formaldehyde, toluene, benzene, VOCs, or toxic substances. Ecobaby’s promotional materials featured the seal of NAOMI, the National Association of Organic Mattress Industry and the FTC says the ads also falsely conveyed that NAOMI was an independent certifying organization when the truth is that NAOMI is nothing more than Ecobaby itself.

You will want to read the orders for the details (click on the links above), and savvy green businesses will pay close attention to provisions addressing “free of” claims. The orders prohibit the companies from making VOC free claims unless the emission level is zero micrograms per cubic meter or if they have competent and reliable scientific evidence that the products in question contain no more than a “trace level” of VOCs. The “trace level” standard comes from Green Guides.

An earlier blog post Gotcha: FTC Enforcement of "VOC Free" Claims for Paint described how green marketing presents an enormously valuable strategy for increasing brand value – cutting across all sectors, but that the legal implications for environmental marketing claims call for caution.

Environmental claims and much more will be the subject of my educational session at Greenbuild International Conference and Expo in Philadelphia on Friday, November 22nd at 8:00 a.m.  Register today for “G09: Marketing Green Building: A Competitive Advantage Without Greenwash”. 

Highlights from the Greenbuild Legal Forum

This year, the US Green Building Council hosted the 2nd Annual Legal Forum at Greenbuild 2011.  The fact that lawyers are now allowed to congregate and make presentations at the Greenbuild conference is an achievement.  The green building community seems to understand that green buildings do present new risks that must be managed and attorneys can help.

Attorney Dan Sheridan provided a thorough recap of the Legal Forum on his blog, Legally Green.  There were two presentations that I found most interesting: 

  • Stephen Del Percio, of Green Real Estate Law Journal, reviewed the Federal Trade Commission's Green Guides, which regulate environmental claims.  Del Percio's presentation left me wondering how the Green Guides might apply to LEED plaques. 
  • The always entertaining Stuart Kaplow provided a list of ways to generate work as a green building attorney.  We will be discussing both of these presentations in future posts. 

It may surprise you to learn that I attended many non-legal presentations at Greenbuild as well.  If you would like to read more about some of these presentations and topics, please head over to Sustainable Cities Collective, where I published the following posts: 

The last post highlights a CBRE study, Dollars and Sense 2011, that will soon be released.  The report discloses that support for "green" waned among CBRE customers in 2011.  How will companies like CBRE shift gears if demand for green buildings decreases?  It should be an interesting topic for next year's Greenbuild in San Francisco.  

During his Greenbuild opening plenary, New York Times columnist Thomas Friedman stated that we would know a green revolution had occurred when the word "green" went away.  But I don't think that's what we are seeing with the CBRE study.  

What is happening to "green"?