Earlier this week, the Federal Trade Commission (“FTC”) sent warning letters to 20 manufacturers and marketers of dog waste bags because claims that the bags are “biodegradable,” “compostable,” and other green claims may be deceptive.
As we blogged about in last October, the FTC issued warning letters to companies about their claims that their plastic was biodegradable or “oxodegradable.” The warning letters involved advertising that products were “biodegradable” when in fact, they would not degrade under normal conditions of disposal in landfills within a “reasonably short period of time,” as required under the Green Guides. The most recent revisions of the Green Guides had warned that unqualified “biodegradable” claims were deceptive if the items customarily disposed of in landfills would not decompose within one year in such an environment.
The recent warning letters are very similar to the October letters and cite the same basic proposition in the Green Guides. The warning letters noted that consumers interpret unqualified “compostable claims” to mean that a product will safely break down at the same rate as natural products in a home compost pile. The problem with these claims is that, as you can imagine, dog waste is not safe to compost at home. Further, if marketers disclosed that their product will only compost in commercial or municipal facilities, consumers would think that such facilities are generally available in their area, when in reality, very few facilities accept this waste. As a result, marketers’ compostable claims for these products are generally untrue.
Dog waste bags has been on the agenda for other enforcers, as well. A California law went into effect in 2013 prohibiting labeling plastic bags and food packaging with the terms “biodegradable,” “degradable,” or “decomposable,” including requirements for the labeling of doggy waste pick-up bags. Products subject to these labeling restrictions include all products made of plastic or plastic components. Under the law, marketers would be permitted to label a product “compostable” only if the product meets the applicable ASTM standard specification at the time of sale.
The real question on everyone’s mind is what – if any – actions will be taken against marketers who make these green claims. In 2013, the FTC brought enforcement actions against companies making similar claims when marketing biodegradable plastics. Since then, warning letters have been issued to companies, but no public enforcement actions have been announced. Given the amount of attention the Commission has paid to this area, along with California’s law governing the labeling of plastic bags, advertisers and sellers should avoid making unqualified biodegradable claims if they do not want to hear from the FTC or California that their claims are full of it.