To paraphrase Mr. McGuire in The Graduate, “There’s a great future in plastics. Think about it. Will you think about it?” Well, the FTC clearly has taken that advice and has been thinking about the future of plastics in landfills. When the FTC announced its revised Green Guides slightly more than a year ago they amended their guidance on biodegradability to make clear that unqualified biodegradability claims cannot be made for products that are customarily disposed of in landfills. In doing so, the FTC rejected comments that suggested it adopt a scientific protocol safe harbor for biodegradability claims because it felt that no such protocol exists that adequately replicates real world landfill conditions.
Well the FTC made it clear this week that they meant what they said. The Commission announced five enforcement actions involving plastic biodegradability claims and another case involving a more general biodegradability claim. This confirms what we’ve been telling people – biodegradability claims are the most common type of environmental cases brought by the agency and after yesterday there isn’t even a close runner- up.
Three of the actions involved the manufacturer (ECM Biofilms) of an additive which allegedly makes plastics biodegradable and two of its customers. Relying in part upon ASTM D5511, the manufacturer provided “Certificates of Biodegradability” to its customers, who in turn made biodegradability claims to consumers. The FTC found that the company could not substantiate a claim that the additive would help plastics biodegrade in landfills in approximately 9 months to 5 years and could transform any plastic into biodegradable plastic. The FTC also proceeded against two of the manufacturer’s customers for making similar claims for their consumer products, notwithstanding the fact that they were relying upon the manufacturer’s representations. One of the companies sold plastic golf tees, and the FTC alleged, as with the other defendants, that the science did not support biodegradability in landfills. A question that occurs to us, however, is whether a consumer would expect the golf tee to be disposed of in a landfill or on a golf course. More importantly though – and as we often tell clients – just because a third party tells you it’s true (and maybe even indemnifies you) doesn’t mean you can necessarily say it.
Two of the remaining actions are against companies that incorporated other brands of plastic additives in their consumer products and made claims that their products were “quickly” biodegradable or simply biodegradable. Interestingly, in these two cases the FTC opted not to proceed against the manufacturers of the additives. There can, of course, be many reasons why the FTC opts not to bring an action.
With respect to these complaints, ECM Biofilms opted not to settle and an administrative trial is set to begin early next year, while the four other companies entered into similar consent orders (more on those below.)
The final action was against a manufacturer of paper plates and other paper products that the FTC alleged violated a 1994 consent order by falsely claiming that its products were biodegradable, recyclable and compostable in a home compost bin. In an odd procedural wrinkle, the FTC first referred the contempt action to the DOJ, which apparently passed on the case and then sent it back to the FTC.
The FTC also provided some additional clarification in the orders for those wishing to make qualified biodegradability claims in the future. Companies who cannot make unqualified biodegradability claims may make qualified claims in one of two manners. First, they can state how long it will take (beyond the required one year) for the product to completely biodegrade in a landfill or in any other disposal environment near where consumers who buy the product live. Alternatively, companies can provide the rate and extent of degradation that has been scientifically verified provided that they include a disclaimer that this does not mean the product will continue to degrade. Consistent with this, the FTC noted that ASTM D5511 cannot substantiate claims that go beyond its parameters (in other words, if it showed a certain % of degradation within a certain period of time you can’t extrapolate beyond that or assume that any additional degradation will occur) and the FTC’s complaints also allege that ASTM D5511 does not simulate the conditions found in the relevant disposal environment.
So in case it wasn’t clear before, biodegradable claims for many consumer products are high-risk claims that require a very close look and such claims will likely need to biodegrade before they ever leave the drawing board. Think about it.