Tuesday, December 13, 2011

New California Law More Restrictive Than FTC Guides on Environmental Claims for Food, Beverages and Plastic Bags

Environmental packaging claims that pass muster under Federal Trade Commission (FTC) law and guides may now be unlawful under a new, more restrictive California law.
California Environmental Package Claims Unlawful
Recently, the California Attorney General sued two makers of bottled water and their plastic bottle supplier for marketing and labeling the bottles as “100 percent biodegradable and recyclable” in violation of California law. The Complaint alleges that such claims are inherently misleading to consumers.
In 2008, California banned the use of words like “biodegradable” “degradable,” or “decomposable” in the labeling of plastic food or beverage containers. It also prohibited calling containers “compostable” or “marine degradable” unless specific American Society for Testing and Materials (ASTM) standards were met.
A few months ago, California began requiring “compostable plastic bags” to contain visual cues for consumers, like dying the bag green, or labeling both sides as “COMPOSTABLE” in big letters next to a big green stripe—in compliance with the FTC Guides for Use of Environmental Marketing Claims (a/k/a the “Green Guides”). These bags also can’t be labeled “recyclable” for fear that added microbes they will “contaminate” the recycling stream.
 The California law provides for civil fines up to $2,000 per violation for repeat offenders, plus court costs if the state sues and wins. Class action lawsuits under California’s Unfair Competition Law or False Advertising Law are also possible.  In 2013, the California law will expand to  all plastic products beginning in 2013.
Companies Claim Plastic Bottles Decompose in 5 Years
The two companies, Balance and Aquamantra, claim that their bottles will decompose in less than five years in a landfill or compost area because of a microbial additive. The California Attorney General disagrees, contending that decomposition frequently does not take place for several reasons, such as improperly recycled bottles that sit in a landfill, which is not conducive to decomposition, as well as that the added microbes are ineffective.
FTC Green Guides Have Different Standard
Proposed changes to the FTC Green Guides would require only that biodegradability claims be substantiated by competent and reliable scientific evidence that the entire product or package will completely break down and return to nature( i.e., it decomposes into elements found in nature within a reasonably short period of time after customary disposal).
Thus, while the FTC permits  biodegradable claims if it occurs “within a reasonably short period after customary disposal,”  California law appears to create an irrefutable presumption that a biodegradable claim is inherently deceptive to consumers, regardless of substantiation proof.
Compliance with the FTC Green Guides will not be a safe harbor against violation of the California law. National marketing of plastic bottles and plastic bags (and as soon as 2013 all forms of plastic) making  claims such as biodegradable and compostable may therefore be practically impossible given California’s position. Alternatively, national marketers can try to craft a cost-effective way to market different bottle labels in California.

AuthorsPaul Van Slyke
      Brandon Witkow
     Gaston Kroub