Last week the FTC announced its latest actions in the agency’s reinvigorated environmental enforcement efforts. In complaints against four companies -- Sami Designs, LLC (d/b/a Jonäno); CSE, Inc. (d/b/a Mad Mod); Pure Bamboo, LLC (website); and The M Group, Inc. (d/b/a Bamboosa) -- the FTC alleged that these companies made false and misleading statements about their products being made from “bamboo fiber,” the environmentally friendly nature of the manufacturing process, and the products’ biodegradability, as well as violated the Textile Act and Rules. (And they scooped us on the best play on words using bamboo in their press release: “FTC Charges Companies with ‘Bamboo-zling’ Consumers with False Product Claims.”)
Bamboo is popular in environmentally conscious circles for its ability to grow quickly without the use of pesticides. (Long-term readers of this blog will recall that bamboo was a topic of interest during the FTC’s workshop on green building and textile claims in July 2008.) The companies charged by the FTC advertised that their textile products were made of bamboo or bamboo fiber. The FTC did not contest that bamboo was used as the raw material for the manufacture of the textiles used. The FTC alleged that despite this, the final product was not bamboo or bamboo fiber but rayon that happened to be produced from cellulose derived from bamboo. Thus, under the consent orders agreed to by Sami Designs, CSE, and Pure Bamboo, these companies are allowed to state that the source of cellulose for their textile is bamboo as long as they also state the recognized generic name of the fiber, e.g., “rayon made from bamboo.” In addition to the Textile Act issue, this also emphasizes the need to be as specific as possible when making statements that might implicitly convey claims of environmental benefits.
Sami Designs and The M Group both included descriptions of the manufacturing process on their websites a couple of clicks from the main pages. The FTC declined to find that sufficiently qualified the companies’ claims, alleging that these disclosures were not clear and conspicuous or in close proximity to the claims made.
The FTC also objected to these three companies making claims that their manufacturing processes were environmentally friendly when the processes used toxic chemicals and released hazardous air pollutants. As we’ve discussed in this space many times before, general claims of environmental benefit, such as “environmentally friendly” or “green,” standing alone, are likely to be considered deceptive.
Pure Bamboo and The M Group also made biodegradability claims about their products. Consistent with its recent enforcement actions, the FTC alleged that these claims are deceptive because textile products are usually disposed of by recycling or in a landfill, neither of which present conditions that will allow textiles to break down completely as required in the Green Guides.
The M Group has not yet entered into a consent decree. In an article in The Post and Courier(Charleston) published the day after news of the FTC’s complaint broke, Morris Saintsing, the head of sales development and operations, and one of the named respondents, said that “the agency is ‘splitting hairs’ because rayon is a fiber after all.” He continued, “’Our product is made from a fiber made from bamboo . . . . We can say it’s made from a fiber made from bamboo. We just can’t say it’s made from bamboo fiber.’” Complicating matters, most in the industry apparently call rayon made from bamboo “bamboo fiber.” Mr. Saintsing went on to say that the company would likely settle because they don’t have the resources to fight the FTC.
In another bamboo-related case, the NAD recently announced resolution of a challenge brought by Dixie Consumer Products, LLC against Solo Cup Company for claims that its Bare Disposable Plates were made from bamboo ("Made from bamboo and other renewable resources"; "Bare dinner plates are made with natural bamboo and other renewable materials . . ."). Dixie presented the results of two rounds of independent laboratory testing that showed only one sample contained any bamboo content (2.5%). Solo countered with laboratory test results concluding that all samples contained bamboo plus documentation showing purchases of bamboo for the manufacture of its Bare Disposable Plates. Solo argued that this evidence demonstrates that its plates contain at least 50% bamboo, which is sufficient to substantiate its claims. Solo, however, voluntary discontinued use of the bamboo content claims, a move the NAD stated was "necessary and proper given the evidence presented in the record."
It's hard to know what to make of the NAD's statement since it didn't provide an in-depth analysis of the issues, presumably because Solo voluntary discontinued the claims. One possibility is that the NAD found Dixie's test results more persuasive and concluded that Solo's plates in fact had very little or no bamboo content. Another possibility is that even if Solo's evidence established bamboo content of around 50%, this simply wasn't enough because, as Dixie argued, consumers would interpret its content claims, particularly when coupled with the renewable claims, to mean that the plates contained more than 50% bamboo.
