We posted yesterday on the FTC's proposed revisions to its Green Guides. As a follow-up, we will post periodically with more details on specific issues addressed in the FTC's proposed revisions. First up is "biodegradable/compostable".
Biodegradable - Solids
Most stuff, at least solid stuff, we throw away ends up in landfills; 66% ends up in landfills or incinerators according to the FTC. Landfills are dark places with little if any air and water. Not only are these things necessary for all of us to survive, they're also essential for the natural processes that lead to biodegradation. Degradability claims account for the highest number of environmental marketing cases, and the FTC has brought a number of cases, including some recent ones, challenging biodegradable claims for products which are destined to spend their eternal rest in landfills. At the same time, science is working to solve this problem. For example, NAD addressed a claim that a plastic bag was oxo biodegradable, and a running shoe company is touting a sneaker midsole that it claims will biodegrade in landfills. In both cases, however, the products still required a significant amount of time to biodegrade; 2-3 years in the case of the plastic bag and 20 years for the sneaker product.
In its proposed revisions, the FTC has decided that a bright line rule might be easier for everyone. So it's out with "decompose . . . within a reasonably short period of time after . . . disposal" and in with "must completely decompose within one year." This "one year" rule is based upon consumer expectations as to how long it should take for a biodegradable product to decompose. Of course, since Section 5 is all about disclosures, you can still make a biodegradable claim if the process will take longer than a year but you have to qualify the claim by stating how long it will take. So the next time you buy paper plates perhaps you'll see the claim -- "Biodegradable**in several hundred years." Despite being urged to do so, the Commission also declined to endorse any particular testing protocol because it could not identify any that accurately replicated the heterogeneous conditions typically found in landfills.
Bottom line - Don't expect to see many biodegradable claims for solid waste.
But what about liquids (or solid waste put into the sewage system (e.g. toilet paper) -- referred to more politely by the FTC as "dissolvable solids")? They're more typically wasting away in an environment full of air and water. Even the oil in the Gulf of Mexico is being munched on and degraded by bacteria. The proposed revisions have much less to say here in part because for many of these products the key question is not "whether" they will degrade but rather "how long." To that end, the FTC is requesting comments and evidence as to how consumers might interpret a "reasonably short period of time" when it comes to liquid waste and may issue further guidance later.
Even if products won't biodegrade in a landfill, some will compost in a compost pile and can be labeled as compostable. Composting takes place in backyards across America and in municipal composting facilities. To make an unqualified compostable claim, the product must compost in a "timely manner." As with biodegradability, the FTC now proposes to define that term to mean that the product will break down in about the same amount of time as other materials with which it is composted, e.g. plant materials. In other words, if you throw the plastic into your compost bin along with a bunch of lawn clippings and 6 months later the lawn clippings are gone but not the plastic, the claim is probably misleading.
For those products that will only decompose in a municipal facility, the proposed revisions emphasize the difficulty of making such an unqualified claim. An unqualified claim can only be made when a substantial majority of consumers or communities have access to composting facilities. The FTC notes that municipal composting facilities remain uncommon and that most consumers likely do not have access to them. The FTC notes its informal position that "substantial majority" means 60%. Given these facts, unqualified claims that a product is compostable in municipal facilities are also likely to be "uncommon."
But are there limits on the extent to which you can qualify these types of claims? It seems clear that you can qualify a biodegradable claim when the issue is how long it will take to biodegrade. But can you qualify the claim when the issue is where, not when, it will biodegrade. If a product, like those disposable cups you've all probably seen, will photodegrade (degrade in the sun) but is usually disposed of in a place where the sun never shines, can you make a qualified biodegradable claim such as "Please Litter, product will biodegrade if disposed of along roadside."
Seem farfetched? It's been done. In 1994, the FTC entered into a consent order with Archer Daniels that prohibits the company from making unsubstantiated degradable, biodegradable or photodegradable claims. Even so, the order allows them to make such claims if the products will break down in composting facilities -- so long as the company prominently discloses that such products will not degrade in landfills and makes any required disclosures regarding limited availability of composting facilities. More recently, Clorox' Greenworks wipes were challenged before the NAD in part because of a claim that they were biodegradable, accompanied by a disclosure on the back that the claim was "validated in typical compost conditions." The NAD found it unnecessary to reach a decision on this issue because Clorox stated it was transitioning to new packaging. Given that the proposed revisions are likely to make it even harder to make true biodegradable claims, advertisers may resort to the use of more such qualified claims so that perhaps this issue will get teed up again for the FTC or NAD.