Summer is ending, and the highly anticipated revisions to the FTC’s Green Guides have still not arrived. As regular readers will recall, the FTC issued its Green Guides in 1992, partly in response to manufacturers’ requests for a uniform standard for making environmental claims. (For additional background, see here.) The current Green Guides allow biodegradability claims if the claim is substantiated by competent and reliable scientific evidence and qualified to the extent necessary to avoid deceiving consumers about the product’s ability to degrade in the environment where it is customarily disposed (i.e., landfills) and the rate and extent of degradation.
California has taken a different approach to these labeling claims. On August 25, the California legislature passed a law that would prohibit labeling any plastic product sold in California as “biodegradable,” “degradable,” or “decomposable.” Senate Bill 1454 now awaits action by Governor Schwarzenegger, who must approve or veto all bills by September 30. SB 1454 includes strong findings that, because there is no American Society for Testing and Materials (ASTM) standard specification for the term “biodegradable” for plastic, the term is inherently misleading to consumers. The bill states that consumers are more likely to litter a plastic item labeled “biodegradable,” which results in harm to the state and its environment.
Current California law prohibits labeling plastic bags and food packaging with the terms “biodegradable,” “degradable,” or “decomposable.” An example of the results of the current California law is evident in the label on the package of a popular brand of doggy waste pick-up bags. S.B. 1454 expands the scope of products subject to these labeling restrictions to include all products made of plastic or plastic components. Marketers would still be permitted to label a product “compostable” or “marine degradable” if and only if the product meets the applicable ASTM standard specification at the time of sale. The bill provides for civil penalties for the violation of the law and expressly states that the remedies in the bill do not preempt consumer protection laws such as California’s Unfair Competition Law.
National marketers will hold their collective breaths to see whether other state legislatures also seek to set standards for environmental marketing claims. If they do, it will be difficult to realize the goals of uniformity and predictability envisioned by the FTC Green Guides. Absent uniform standards, consumers are likely left more confused, not less, by a patchwork of labeling requirements. We hope a consistent nationwide approach to environmental marketing regulations is adopted, but stay tuned here for future developments.