Consistent with the old guidelines, an item is recyclable under the revised Green Guides if it can be collected, separated, or otherwise recovered from the waste stream through an established recycling program for reuse or use in manufacturing or assembling another item; an item is not recyclable merely because recycling facilities will accept it for processing, if such facilities ultimately discard the item.
The revised Green Guides instruct marketers to carefully qualify recyclable claims if the entire product or package (excluding “minor incidental components”) is not recyclable, and provide additional guidance, not included in the 2010 proposed revisions, as to how recyclable claims should be qualified for multi-layer packaging. More specific qualifiers are better. For example, if packaging contains four layers, only one of which is recyclable, the revised Green Guides caution that it may be deceptive to claim that the packaging “includes some recyclable material.” Instead, marketers would be safer specifying the portion of the package that is recyclable by stating: “25 percent of this package is recyclable.”Additionally, marketers must qualify recyclable claims if the facilities needed to recycle the item are not available to a substantial majority of consumers or communities in which the item is sold. Adopting the 2010 proposed revisions, the revised Green Guides define “substantial majority” as 60%, but move it from a footnote to the text to “clearly place marketers on notice of the threshold.” The lower the level of access to appropriate facilities, the more a marketer should emphasize the limited availability in its recyclable claim. Thus, if the appropriate facilities are only available to a small minority of consumers, it is likely insufficient to state, “This product may not be recyclable in your area.” Instead, marketers should use a stronger qualifier -- “This product is recyclable only in the few communities with appropriate recycling facilities” would be better.
Claims that a product is compostable should be substantiated by competent and reliable scientific evidence that the entire product will break down into -- or become part of -- usable compost in a safe and timely manner. The revised Green Guides, adopting the 2010 proposed revisions, clarify that a “timely manner” means the item should break down within approximately the same time as the material with which its composted (i.e., natural plant material).
A holdover from the old guidelines, the revised Green Guides also caution that to avoid deception, manufacturers whose products are not suitable for home composting should be careful to disclose this information if they choose to make compostable claims. Because of continuing variation nationwide in the availability of composting facilities, if the product is not suitable for home composting, marketers should qualify compostable claims if a municipal or institutional composting facility in which the product can be composted is not available to a substantial majority of consumers where the item is sold (e.g., “Appropriate facilities may not exist in your area”). Although the FTC has not specifically defined “substantial majority” for compostable claims, the 60% threshold now defined with respect to recyclable claims is probably a good starting point.
Adopting the 2010 proposed revisions, the revised Green Guides provide that claims that a product is degradable, biodegradable, oxo-degradable, oxo-biodegradable, or photodegradable should be supported by competent and reliable scientific evidence that the entire item will completely break down into elements found in nature within a reasonably short time after customary disposal. Oxo-degradable and oxo-biodegradable claims were not covered by the old guidelines.
To clarify the old guidance, the revised Green Guides, which follow the proposed revisions, now define this reasonably short time period as one year for solid waste products. Because items customarily disposed of in landfills, incinerators, or recycling facilities will not decompose in a year, the revised Green Guides state that unqualified degradable claims for such items are deceptive.
Although the revised Green Guides are non-binding, they do represent the FTC’s current views on green claims and are designed to help advertisers avoid violating Section 5 of the FTC Act. Thus, advertisers should be wary that failure to follow the Guides may result in FTC enforcement action. Adherence to the principle of careful and specific claims and qualifications, a theme consistent throughout the revised Green Guides, should make it easier for consumers to understand green claims, decreasing the likelihood of scrutiny.
- Matthew Shultz and Joanna Persio