Green claims

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Given the increasingly national scope of commerce, consumer products companies find it difficult to deal with issues regulated at the state level, particularly if states adopt differing and sometimes conflicting solutions to a common problem.  As a result, industry often turns to the federal government for help in creating a common federal solution.  The FTC’s Green Guides were originally born out of concern for conflicting state regulation of claims such as recyclables, while today manufacturers are concerned about efforts by states such as Vermont to regulate GMOs in food products.  Recently industry participants utilizing microbeads also appeared to have successfully supplanted numerous state regulations for a uniform federal regulation. [Microbeads, by the way, are plastic microspheres that are commonly used in personal care products.  Because they are so small they tend to end up back into the ecosystem, raising concerns about pollution.]

The Microbead-Free Waters Act of 2015, imposes a ban on manufacturing products with the beads as of July 1, 2017, followed by product-specific distribution bans in 2018 and 2019. Additionally, as industry participants had hoped, the Act also preempts state laws but the statute’s specific wording cracks the door to the enforcement of earlier-in-time state and local microbead restrictions.

The Act addresses microbeads according to the following schedule:
Continue Reading Crying for Federal Micromanagement — Complying with Conflicting Federal, State and Local Microbead Laws has Personal Care Products Companies in Need of Relief

By cyclonebill (Kaffe) [CC BY-SA 2.0], via Wikimedia Commons

We have sometimes described finding materials that will quickly biodegrade in landfills as the Holy Grail of environmental marketing.  But who would have guessed it would come in the form of a polystyrene cup?

Well, not exactly, the NAD cautioned in a recent decision.  New Win Cup Holdings marketed the Vio cup, which it claimed would – thanks to a special additive — biodegrade 84.37% after 1,154 days in a wetter, biologically active landfill  (wetter, biologically active landfills typically are landfills that are managed to promote the presence of water and oxygen, both of which accelerate biodegradation.)  Further, Win Cup stated that it had used a specific ASTM test, that there was no certainty that the cups would continue to biodegrade further after 1,154 days, and, last of all, that a wetter, biologically active landfill might not exist in your area.  Now that’s what we call a qualified claim!Continue Reading Not Your Mother’s Red Solo Cup

On Monday, the FTC Commissioners issued an opinion and Final Order, finding that ECM BioFilms, Inc. (“ECM”) made false, misleading, and unsubstantiated environmental claims about its chemical additive product.  According to the FTC’s Complaint filed in October 2013, ECM’s advertisements and marketing materials claimed its product would cause plastics using its additive to: (i) biodegrade in a landfill within nine months to five years; and (ii) make the product biodegradable.  The Complaint also alleged that ECM made deceptive establishment claims and that ECM provided the means and instrumentalities to its customers to make deceptive statements to consumers about finished products.  We’ve written previously about similar challenges to biodegradability.  What makes this opinion notable is the disagreement among the Commission about what claims can be inferred from an unqualified claim that a product is biodegradable, the reliability of a relatively new survey methodology, and what the “significant minority” language in the FTC’s Policy Statement on Deception (the “Deception Statement”) means in the context of extrinsic evidence.

In its opinion, the Commission affirmed Chief Administrative Law Judge D. Michael Chappell’s Initial Decision that ECM made deceptive biodegradability claims that plastics treated with its additive will completely biodegrade within nine months to five years and that ECM encouraged its customers to pass on these deceptive claims to consumers.  However, upon its own examination of the evidence, the Commission reversed the ALJ and held that ECM also made implied claims that were false and unsubstantiated regarding how plastics treated with ECM’s product will biodegrade within a reasonably short period of time, or within one to five years by making a general biodegradability claim.  The ALJ had found that the FTC failed to produce sufficient extrinsic evidence that ECM’s marketing made such implied claims. 
Continue Reading Consensus Among FTC Commissioners on Green Claims Appears To Be Biodegrading

By Boyd Amanda, U.S. Fish and Wildlife Service [Public domain], via Wikimedia Commons

No, PETA will not be in an uproar.  But if you certify Green claims or use someone else’s certification on your products you may want to continue reading.

In the past we have noted that third-party certifications and endorsements relating to environmental or “green” attributes are heavily scrutinized by the FTC as more “green” products continue to hit the market. Last year, we wrote about the FTC taking action against a plastic lumber marketer and a manufacturer for misleading advertising and marketing that claimed products to be made almost entirely out of recycled plastics. 
Continue Reading FTC Goes Seal Hunting: Issues Warning Letters About Green Seals

There is lore that the beauty industry does not challenge itself sufficiently before NAD, and for this reason NAD brings more monitoring challenges in this area. After the recent decision in a case brought by Unilever, we would not be surprised if we see more competitor challenges in this area. And advertisers on the receiving end of these challenges might not find them cruelty free.

OGX makes shampoos, conditioners and related hair care products with a variety of what NAD termed “exotic” ingredients:  lines with argan oil from Morocco, coconut water, ‎keratin oil, biotin, cherry blossom ginsing, etc. Unilever said the product names were listed next to product benefits in a way that implied the benefit was due to the exotic ingredients. Unilever alleged the exotic ingredients were present at levels that would not deliver these benefits. OGX and its maker Vogue International did not provide evidence of what the exotic ingredients did. Instead, they said that the benefits were due to the formulas as a whole, that shampoo and conditioner clean hair generally, which make hair soft, fuller, etc. It voluntarily committed to redoing its packaging to separate the product benefits in the romance copy from the product name.Continue Reading When Your Brand Name is a Claim—NAD Cleans and Straightens Without Support from Advertiser

Rayon, or Viscose if you’re British or just want to sound British, is typically made from wood pulp or plant fibers, including bamboo.  However, in doing so the fibers are subject to significant processing, including numerous chemicals, thus the Grateful Dead reference in the title.  Nevertheless, in a time when consumers are concerned about the environment and their own health, manufacturers and retailers alike are often drawn to evoking the image of lush fields of bamboo and its sustainability and eco-friendly features and thus labeling or advertising textile products as “bamboo,” which, let’s face it, does sound a lot better than rayon.  The difficulty with this is the Textile Fiber Products Identification Act, or Textile Act, for short.  The FTC, which enforces the Act, has established generic names for manufactured fibers that must be used in labeling and advertising.  “Bamboo” definitely is not on the list, while Rayon and Viscose are.  (If you’re a total fiber geek, there is such a thing as a natural bamboo fiber but in the FTC’s view it is rarely if ever used in commercial textiles.)  Just to demonstrate their generous nature, the FTC has said it won’t quibble with terms like “rayon from bamboo,” just so long as the magic word “rayon” appears. 
Continue Reading From Bamboo to Rayon: What a Long Strange Trip It Is

The Better Business Bureau (BBB), known for being the home of NAD, CARU and other advertising self-regulatory forums, is now also the proud owner of an updated advertising code.  The BBB announced earlier this month significant updates to its Code of Advertising for the first time since 1985 (when the number one single was “Careless Whisper” by Wham.)

In a press release, the BBB indicated that changes to the Code were made “to reflect the many new ways that advertisers reach consumers via websites, social media, texting and other channels.”
Continue Reading BBB Updates Advertising Code to Keep Pace with Technology

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.Continue Reading Marketers and Sellers of Animal Waste Bags May Be in the Doghouse for Biodegradable and Compostable Claims

“Paper or plastic?”  The age-old question, complicated by the creation of biodegradable plastic, has been broken down more.  Many people’s misgivings about using plastic bags were alleviated with the advent of plastic bags that can carry more weight with less guilt.  However, after this week, there is no question that the FTC is serious about…

Advertisers seek out third-party certifications and endorsements for their environmental efforts as a means of providing credibility to green claims made to consumers.  Indeed, the FTC’s Green Guides make clear that companies who choose instead to “self-certify” must make that fact clear to consumers precisely because consumers may view self-certification with more skepticism.

But can an environmental seal also operate as a shield against legal liability?  Chiquita may be about to find out.  The Seattle-based Water and Sanitation Health (WASH) Group has taken issue with green bananas (no one likes the green ones, do they?) and filed a lawsuit against Chiquita alleging that the Company’s claim that its bananas are grown in an ecologically friendly and sustainable manner is deceptive. 
Continue Reading Is Chiquita in a Bunch of Trouble Over Green Claims?