The Federal Trade Commission recently unveiled long-awaited proposed revisions to its Guides for the Use of Environmental Marketing Claims, known as the “Green Guides,” which were last updated in 1998 (available at http://www.ftc.gov/os/fedreg/2010/october/101006green guidesfrn.pdf).  The Green Guides help marketers comply with basic advertising law principles when making “green” advertising claims by ensuring claims are true and substantiated.  As part of its revision effort, the FTC relied on public workshops, comments and a study of consumers’ perceptions of environmental claims.  Moreover, the FTC has requested public comments on the proposed revisions, through December 10, 2010, after which time the FTC will decide what changes to make final. 

We previously addressed the revised Green Guides’ position on general environmental benefit claims (see alert entitled FTC's Proposed Revised Green Guides Warn Against General "Green" Claims).  We now turn to the revised Green Guides’ treatment of degradability claims.    

Degradability:  Place and Time Matter

Under the current Green Guides, a marketer making a claim of degradability was to qualify the claim unless the marketer had scientific evidence that the “entire product or package will completely breakdown and return to nature within a reasonably short period of time after customary disposal.”  Marketers were further urged to qualify degradable claims to prevent consumer deception about (1) the product or package’s ability to degrade in the environment where it is customarily disposed (such as a landfill) and (2) the rate and extent of degradation.   

Claims of degradability are the most often challenged claims under the Green Guides and such claims have been the subject of enforcement actions and proposed state bans.  Specifically, the FTC has brought suit against three companies for labeling products as “biodegradable” when the FTC believed that the products were customarily disposed of in landfills where it is impossible for waste to biodegrade in a reasonably short time.  The FTC’s concern was that the products were unable to degrade in the manner consumers expect, because consumer impression and expectation is the touchstone of advertising law.  In California, the governor recently vetoed a bill that would have banned all biodegradability claims for plastic products.

Degradability claim are under such scrutiny because the FTC is concerned that these claims are misleading in light of consumer perceptions regarding degradability.  Specifically, sixty percent of consumers believe that a biodegradable package will disappear in one year or less, and more than eighty percent of consumers erroneously believe that a biodegradable item will decompose in a landfill.    

Responding to the comments it solicited and the consumer perception evidence it gathered, the FTC has revised the Green Guides to attempt to prevent consumer deception.  First, because the vast majority of America’s solid waste ends in up landfills, incinerators or recycling centers where waste does not decompose either at all or in a reasonably short period of time, the FTC suggests that unqualified claims of degradability for those products are misleading.  Thus, marketers should not make unqualified degradable claims for products that are destined for landfills, incinerators, or recycling facilities because decomposition will not occur within a reasonably short period of time under those circumstances. 

Second, the FTC offers a bright line rule as to what a “reasonably short period of time” is for solid waste that is not customarily disposed of landfills, incinerators, or recycling centers.  Under the revised Greed Guides, a “reasonably short period of time” for complete decomposition is no more than one year after customary disposal.

Marketers may still make biodegradable claims if the process will take longer than a year, but those claims must be qualified by stating how long it will take the product to completely decompose after customary disposal.  If customary disposal is via landfill, as is the case for much of America’s solid waste, an appropriate qualification would need to state that decomposition could take decades, if not centuries.    

The FTC declined to provide more definitive guidance as to what a “reasonably short period of time” is for liquid waste degradability claims.  The FTC lacked sufficient evidence regarding consumers' perception of these degradability claims and is seeking such evidence and comments on whether the Green Guides should specify a decomposition period for unqualified claims for liquid waste or dissolvable solids.  The FTC also declined to adopt a technical protocol or technical standards that marketers could apply to substantiate degradability claims because the FTC did not believe that any of the protocols presented both assured complete decomposition within one year and replicated the physical conditions found in the relevant disposal environment, which will most often be landfills.

Under the proposed, revised Green Guides, marketers should give considerable thought when considering an unqualified degradability claim, and do so only when they have appropriate substantiation.    

As we continue to review and digest the FTC’s revisions, we will issue new Alerts on discrete topics. 

Kilpatrick Stockton’s Advertising, Promotions, & Media group represents advertisers and brand marketers in a broad range of industries, and the group’s attorneys have extensive experience in advertising, technology, intellectual property, and media law.  Please feel free to contact us for more information about the issues contained in this Alert.

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