© 2017 by Robert M. Lilienfeld. All rights reserved.

 

Guide to Sustainable Packaging Claims

Overview

Eco-friendly. Green. Sustainable. Good for the planet. Compostable. Biodegradable.

 

What do these terms mean? Are they legitimate? Are they legal? How do you know?

 

According to the law, all of the very broad claims just mentioned may actually be meaningless, and possibly illegal. In fact, the rules governing the use of advertising claims have been around almost 100 years: The United States Congress passed the Federal Trade Commission Act of 1914, establishing its namesake, the FTC.

 

Section 5 of the Act prohibits “unfair methods of competition” and was amended in 1938 to also prohibit “unfair or deceptive acts or practices.” A representation, omission, or practice is deceptive if: (1) it is likely to mislead consumers acting reasonably under the circumstances; and (2) it is likely to affect consumers’ conduct or decisions with respect to the product at issue.

General Guidelines

How can you gauge if a claim is legitimate? Here are four simple guidelines:

 

1. Specific and detailed
The description must state exactly what is being claimed, by how much, and compared to what. For example, a product cannot simply claim to use less energy. It must state when the energy is being saved, by how much and compared to what.

Claims that are general or vague are not only considered to be meaningless, the FTC considers them to be deceptive. Technically, this means that claims which appear to be simple and harmless, such as “eco-friendly,” are open to scrutiny and legal action.

 

2. Clear, prominent & easily understood
According to the FTC, “Clarity of language, relative type size and proximity to the claim being qualified, and an absence of contrary claims that could undercut effectiveness, will maximize the likelihood that the qualifications and disclosures are appropriately clear and prominent.”

 

3. No overstatements
Claims that are not statistically significant should not be made. Further, unless recycling or composting is widely available (generally accepted to mean by at least 60% of households), it cannot be claimed without qualifying exactly where it can occur.

 

4. A clear basis of comparison
To claim that your product generates 25% fewer greenhouse gas emissions than a competitive product, you must be able to state the emissions levels for both products and ensure that all data is both accurate and current.

Environmental Specifics

Based upon FTC general regulations and its guidelines relating to advertising claims and substantiation, and the environmental guidelines developed by the FTC either singly or jointly with the EPA, all marketing and sales materials must meet the following criteria:

1. General Environmental Claims

Unless substantiation can be provided, broad environmental claims must either be avoided or qualified. Further, claims must not create broader positive impressions than what is communicated by the specific claim.

 

Example: Naming or describing a product as “Eco-Friendly” would be deceptive if it leads to the belief that the product has environmental benefits which cannot be substantiated. However, the claim would not be deceptive if "Eco-Friendly" were followed by clear and prominent qualifying language limiting the positive representation to a particular product attribute that could be substantiated, providing that no other deceptive implications were created by the context.

 

Note: In its latest Green Guides summary, the FTC even goes on to say that, claiming “Green, made with recycled content” may be deceptive if the environmental costs of using recycled content outweigh the environmental benefits of using it.”

2. Recyclability

A product or package should not be marketed as recyclable unless it can be collected, separated or otherwise recovered from the solid waste stream for reuse, or in the manufacture or assembly of another package or product, through an established recycling program. However, unqualified claims of recyclability for a product or package may be made if the entire product or package, excluding minor incidental components, is recyclable.

 

If recycling facilities for a product are not available to at least 60 percent of consumers or communities, a marketer can state, “This product may not be recyclable in your area.”

 

Rule of thumb: The lower the level of appropriate facilities, the more a marketer should emphasize the limited availability of recycling for the product.

 

To further avoid the potential for deception:

 

  1. If a product or package is made of both recyclable and non-recyclable components, the recyclable claim should be adequately qualified to clearly state which portions or components are recyclable.
     

  2. Claims of recyclability should be qualified to the extent necessary to avoid consumer deception about any limited availability of recycling programs and collection sites.

 

Example: A nationally marketed 8 oz. plastic cottage-cheese container displays the Resin Identification Code (RIC) symbol - consisting of triangular shape containing a number and abbreviation identifying the component plastic resin - on the front label of the container, in close proximity to the product name and logo. The manufacturer's conspicuous use of this symbol in this manner constitutes a recyclability claim.


Unless recycling facilities for this container are available to a substantial majority of consumers or communities, the claim should be qualified to disclose the limited availability of recycling programs for the container. However, if the code had been placed in an inconspicuous location on the container (e.g., embedded in the bottom of the container) it would not constitute a claim of recyclability.

 

Note from this example (which is taken directly from FTC documents) how important it is for marketers of packaging to understand the guidelines: The FTC considers the RIC symbols to be potentially deceptive to consumers if not handled in the manner described.

 

If recycling is not widely or generally available, claims should be qualified to indicate the limited availability of programs. Two examples are “This container may not be recyclable in your area,” or “Recycling programs for this container may not exist in your area.” Other examples of adequate qualification of the claim include providing the number of communities with programs, or the percentage of communities or the population to which programs are available.

 

  1. No incidental components should be present that significantly limit the ability to recycle a product or package. For example, if labeling significantly reduces recyclability of a package, it would be deceptive to refer to the package as recyclable.
     

  2. A product or package that is made from recyclable material, but is not accepted in recycling programs for such material, should not be marketed as recyclable. In such a situation, it would be appropriate to communicate that “This package contains 20% recycled material” but it would be deceptive to state that the package can (once again) be recycled.

 

3. Recycled Content

A recycled content claim may be made only for materials that have been recovered or otherwise diverted from the solid waste stream, either during the manufacturing process (pre-consumer), or after consumer use (post-consumer). Specific conditions include:

 

  1. To the extent the source of recycled content includes pre-consumer material, the manufacturer or advertiser must be able to substantiate that the pre-consumer material would otherwise have entered the solid waste stream. This is particularly important for plastics molders, fabricators and processors:
     

    • A molder routinely collects spilled resin and scraps left over from the original manufacturing process. After a minimal amount of reprocessing, the molder combines the spills and scraps with virgin material for use in further production of the same product. A claim that the product contains recycled material is deceptive because the spills and scraps to which the claim refers are normally reused by industry within the original manufacturing process, and would not normally have entered the waste stream.
       

  2. In asserting a recycled content claim, distinctions may be made between pre-consumer and post-consumer materials. Where such distinctions are asserted, any express or implied claim about the specific pre-consumer or post-consumer content of a product or package must be substantiated.
     

  3. For products or packages that are only partially made of recycled material, a recycled claim should be adequately qualified to avoid deception about the amount, by weight, of recycled content in the finished product or package (e.g., “Made from 30% recycled material.)
     

 

4. Biodegradation

Claims of degradability should be qualified “by competent and reliable scientific evidence” to avoid consumer deception. Unless otherwise specified, a product must biodegrade or photodegrade in the environment in which it is usually disposed (e.g., a sanitary landfill) and according to a recent ruling, must do so within five years of disposal. Unless clearly stated, degradation must also be complete, with no leftover synthetic or complex byproducts or residue.

 

  • Example: According to the law, paper cannot be described as simply “biodegradable”, as it will not break down in its typical disposal environment, a landfill, at a reasonably fast rate. Technically, a paper product which claims to be biodegradable should qualify this statement by including a statement such as: “When composted in a facility designed to handle this type of paper, usually an industrial composting facility.”

 

5. Composting

A compostability claim must be substantiated by “competent and reliable scientific evidence” that all the materials in the product or package will (1) break down into, or otherwise become part of, usable compost (e.g., soil-conditioners, mulch, (2) in a safe and timely manner, and (3) in an appropriate composting program or facility, or in a home compost pile or device. Claims must be substantiated, or they will be considered deceptive if:

 

  • Composting cannot occur in a home compost pile or device, and/or it is not revealed that composting must occur in municipal or institutional facilities
     

  • Consumers are misled into believing that landfilling will produce results similar or equal to backyard composting,
     

  • The results of composting are not 100% usable as conditioners or mulch.


Example: The description of a corn-based plastic as compostable (and/or biodegradable) is deceptive if it is not clearly stated that products made from this plastic must be composted in an institutional facility, and that the availability of such facilities is limited.

 

However, limiting the sale of products to areas in which they can be composted, or stating specifically where they can be composted, is acceptable and not considered deceptive. In the example just mentioned, a description such as “Compostable only in the area where this product or package was purchased” or “Compostable in Northern Oregon” would typically not be considered deceptive.


 

6. Renewable Materials
Renewable materials should be clearly and prominently identified, with an explanation as to why they are renewable. (FTC example: “Our flooring is made from 100% bamboo, which grows at the same rate, or faster, than we use it.”)

 

Further, unless an item is made entirely from renewable materials, claims should be modified to include the amount produced from them. (FTC example: “This package is made from 50% plant-based renewable materials. Because we turn fast-growing plants into bio-plastics, only half of our product is made from petroleum-based materials.”)


 

7. Source Reduction
Source reduction claims should be qualified to the extent necessary to avoid consumer deception about both the amount of  reduction and the basis for any comparison that is asserted. It is perfectly fine to say “This package creates 10% less waste than our previous package.” However, simply stating “This package creates 10% less waste” is ambiguous, and open to being considered deceptive.

In Conclusion

As you can see, federal laws and regulations require environmental claims to be specific and substantiated. However, please keep these points in mind:

 

  1. Whether a claim is specific enough, or provides proper substantiation, is open to interpretation.
     

  2. The FTC staff routinely issues new interpretations of the law. These may complement or conflict with previous interpretations.
     

  3. As an active user and/or producer of sustainable packaging communications materials, it may be hard for you to be completely objective when it comes to evaluating the legality of proposed environmental marketing claims. Please remember that the potential financial and perceptual costs of making a mistake regarding environmental claims are high!

    Please consult with your Legal, Sustainability, and Corporate Social Responsibility departments before accepting or making public any environmental claim.

 

When in doubt, ask for substantiation!!!