FTC Raises Question: “Is Anything Biodegradable?”

NYTimes Green Blogger Kate Galbraith published a story about a recent FTC action against retailer K-Mart and two other companies (Tender Corp., and Dyna-E International) with making “false and unsubstantiated claims” that their products were biodegradable.  (The two other companies make branded products carried by the retailer).   K-Mart and Tender Corp. have since settled with the FTC, according to the post.

You can read the entire story here.

Kmart Corp. called its American Fare brand disposable plates biodegradable, while Tender Corp. called its Fresh Bath-brand moist wipes biodegradable, and Dyna-E International called its Lightload brand compressed dry towels biodegradable.

The FTC’s press release explains the logic of the action:

Since 1992, the FTC’s “Green Guides” have advised marketers that unqualified biodegradable claims are acceptable only if they have scientific evidence that their product will completely decompose within a reasonably short period of time under customary methods of disposal. In the three complaints announced today, the FTC alleged that the defendants’ products typically are disposed in landfills, incinerators, or recycling facilities, where it is impossible for waste to biodegrade within a reasonably short time. (italics added for emphasis)

What makes this case so fascinating…and important for Greenwashing Spies…is that federal officials appear to be scrutinizing green marketing claims based on two criteria:

  1. The product claim of biodegradable and/or compostable based on scientific tests and standards.
  2. Consumers must have a reasonable chance to take advantage of the marketing claim, i.e., the product must actually be sent to a municipal composting facility where it will actually be composted.

It’s the second point that is so meaningful for responsible marketers and careful consumers.

“We hope that these actions will serve as notice to these markets that an unqualified claim of biodegradability is probably false and cannot be substantiated,” said FTC attorney Michael Davis.  “Maybe a piece of produce could be labeled biodegradable if it’s customarily disposed of through composting,” he said, “but the statistics show that most household trash goes to landfills. So even a piece of produce might not biodegrade” in a reasonable period of time, he explained.

Let’s hope this sets a warning bell among purchasing departments of major retailers throughout the US, if not in the marketing departments of manufacturers:  marketing language involving hot-button words like “biodegradable” and “compostable” are guilty first…or at least highly suspect…if they are not backed by both scientific evidence and qualifications to those claims.


Red Flags of Green Marketing

Boulder, Colorado-based trademark attorney Andrea Anderson of the law firm Holland & Hart recently posted a excellent article on Colorado Business Magazine’s website on how businesses can be a more truthful and accurate green marketer.  You can read the entire post here.

The article presents an good checklist for companies who wish to avoid being labeled a “Greenwasher”.  However, we thought it also made a good primer on the tricks that unscrupulous green marketers employ so you, the careful and conscientious consumer, can avoid being greenwashed.

According to  Anderson, here are eight key dos and don’t for responsible green marketing:

1. Environmental claims must be accurate and not misleading
2. Substantiate your environmental claims, especially for environmental claims like “degradable” or “compostable” which must be substantiated through scientific evidence, such as tests, analyses, research or studies.
3. Make claims that are clear and specific. Vague claims that are open to varying interpretations are more likely to be deemed misleading.
4. Avoid fine print. Any “qualifications,” “explanations” or “disclaimers” need to be clear and prominent so that they are easy for consumers to read and understand.
5. Choose your certifying partners wisely.
6. Don’t take your suppliers’ claims at face value. Demand substantiation of all environmental claims made by suppliers and vendors before you include these claims in your advertising.
7. Take extra care with “hot-button” terms. Before using any of these terms (“degradable,” “compostable,” “recyclable” and “recycled,” among others), careful marketers should consult the FTC’s Green Guides for the use of green marketing terms, available on the FTC’s website.
8. New FTC guidance is coming:  The FTC will likely publish new proposed guidelines some time during 2009.

Company Director Convicted of False Biodegradability Claims

Greenwashing can have rather severe legal consequences…especially if you are an Australian consumer products company.

The Federal Court of Australia declared on March 30 that a director who approved her company’s advertising had been knowingly made false and misleading claims about biodegradability.  Ms Charishma Seneviratne, while a director of SeNevens International Ltd, approved the company’s claim that the whole of its Safeties Nature Nappy product was biodegradable, when she knew that was not the case.

Justice Marshall has imposed a five-year injunction on Ms Seneviratne restraining her from being party to any nappy biodegradability claims without first having received independent scientific testing of the product being promoted.

ACCC Chairman, Mr Graeme Samuel said: “This case serves to emphasise that directors cannot hide behind their companies. If a director or employee is knowingly concerned in their company’s misleading conduct, then those individuals also risk personal fines and injunctions.

The (Australian) Federal Court had previously declared that the company had engaged in false or misleading conduct by making representations that the Safeties Nature Nappy was ‘100% biodegradable’.

Justice Marshall had previously declared that the biodegradability claims were false and misleading because SeNevens’ Safeties Nature Nappy range contained plastic components that are not capable of being broken down by the biological activity of living organisms.

Senevens marketed its ‘100% biodegradable’ nappy and nappy disposal bag in Western Australia from November 2006 before expanding to all Australian States and the ACT in March 2007. SeNevens withdrew the product from sale in April 2008 after the ACCC’s investigation into the claims.

Justice Marshall found that in making the claims SeNevens contravened sections 52 and 53 of the Trade Practices Act 1974 by engaging in misleading conduct about the biodegradability of its Safeties Nature Nappy. Justice Marshall imposed injunctions on SeNevens restraining it from engaging in similar conduct and ordered that SeNevens publish a corrective advertisement and establish a trade practices compliance program.

“Consumers are actively choosing products that are environmentally friendly.  If a business makes biodegradability claims then it must ensure the claims are supported by rigorous scientific evidence.”

Editor’s note: In an ironic and perhaps not unexpected new attempt at greenwashing, SeNevens International Ltd has changed its name and now operates as Eco Quest Limited.

NAD Prevails against “Oxo-Biodegradable” Manufacturer

According to a post by NYTimes blogger Kate Galbraith, the National Advertising Division of the Council of Better Business Bureaus recently said that G.P. Plastics has accepted recommendations to discontinue the use of some of its green advertising claims.

As you will recall in the greenwashingspy.com post from December 15, the Times had planned to begin using the PolyGreen bags but backed out of that decision.

G.P. Plastics said in a statement published on the N.A.D. website that it is “disappointed that the N.A.D. did not agree that the claims that PDQ-H additives from Willow Ridge make bags ‘100 percent oxo-biodegradable’ and ‘completely recyclable’. Further, G.P. Plastics also regrets that the N.A.D. failed to recognize that certain of its slogans (e.g., ‘the greatest thing to ever hit the earth’) are puffery.”

For more information about “biodegradable claims”, read Dr. Ramani Narayan’s recent report on “Biodegradability” republished by the Biodegradadable Products Institute with permission from Bioplastics Magazine.

Taking Compost to the Curb

On the popular website Earth911.com, freelance author Sarah Schmidt reports on the growing number of municipal compost programs that include food scraps and wet paper — the other 25% of municipal trash that could be diverted from landfills and recovered yet is not.

Curbside recycling programs have become so common, that most of us take them for granted. Simply toss your soda cans, beer bottles and newspapers in the right bins and your city or county will make sure they get recycled.

But will the day ever come when we can compost our food scraps just as easily? In some U.S. cities, that day is already here, and there is a growing movement afoot to make curbside composting as easy and common as recycling has become. That’s good news, considering that the average American throws away about 100 pounds of food scraps a year—and that adds up more than 7 percent of the waste stream.

Here are some highlights:

  • San Francisco residents can put almost all of their food waste—even meat and dairy—in bins for pick-up, thanks to an innovative residential composting program that began in 1998 (restaurants there have been composting even longer—since 1997). The scraps are put in biodegradable bags, which are now widely available. The resulting compost is sold to California’s famous vineyards to grow grapes and the revenue helps offset the cost.
  • Inspired by San Francisco, other US cities are catching on: In 2005, Seattle began curbside composting as part of its Zero-Waste Strategy. Boulder, Colo., Austin, Texas and Minneapolis-St. Paul, Minn. have recently begun doing so, too.
  • Facing a decline in available landfill space, Rapid City, S.D., instituted an ambitious co-composting program in which organic material is sorted from the general solid waste stream and combined with biosolids (human waste) collected from the water treatment plant. The combined sludge is then processed and converted into agricultural compost.
  • Other states are also looking into ways to foster more composting. In Minnesota, for example, where many small local programs have been initiated by towns and even school districts, the legislature is considering ways to implement even more says Ginny Black, of the Minnesota Pollution Control Agency.

Read more about it here.