FTC Continues to Challenge Claims for Biodegradable Plastics

The U.S. Federal Trade Commission (FTC) has written to 15 producers of plastic bags warning that "oxo-degradable" and "oxo-biodegradable" claims may be deceptive and asking that the claims be withdrawn or that competent and reliable scientific evidence supporting the claims be provided. This is a continuation of FTC's campaign to crack down on what it alleges to be misleading and unsubstantiated environmental marketing claims made by manufacturers of plastic bags and other plastic products.

While this most recent FTC action against unsubstantiated degradability claims is aimed at trash bags, earlier actions involved other products, including food containers, plastic grocery bags, and additives for plastics. FTC announced six enforcement actions in October 2013, five of which—for the first time—addressed biodegradability claims for plastic products. All of the cases are part of an FTC program to ensure industry adherence to its Guides for the Use of Environmental Marketing Claims (Green Guides), which were revised in 2012.

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Several of the earlier enforcement actions have been settled and provide a good map of what others caught up in the FTC dragnet can expect. For example, in one final order, a manufacturer of plastic shopping bags is prohibited from making unqualified biodegradability claims about any product unless it has evidence that the entire bag will completely decompose into elements found in nature within one year after customary disposal, the outside timeframe within which FTC says that consumers expect a degradable item to decompose.

The order goes on to state that an ASTM standard on biodegradability cannot be used to substantiate unqualified claims or claims that go beyond the results and parameters of the test, and that any testing protocol used to substantiate degradable claims must simulate the conditions found in the disposal environment. Further, to make qualified claims, the company must provide information on the rate and extent of degradation in a landfill or other disposal facility.

Another settlement involved $450,000 in civil penalties since FTC had previously challenged that company's green claims as misleading.

B2B claims are scrutinized as well

And it is not only claims for consumer products that the agency is going after. One FTC enforcement action targeted a company that markets an additive used in the manufacture of plastics that it claims makes plastic products biodegradable. The company claims that "plastic products made with [its] additives will break down in approximately nine months to five years in nearly all landfills or wherever else they may end up." The FTC complaint alleges that these purportedly biodegradable plastics do not, in fact, biodegrade within a reasonably short period of time after disposal in a landfill. That case has not been settled yet.

FTC has shown that it strongly disfavors degradability claims, arguing that most items are customarily disposed of in sanitary landfills, incineration facilities or recycling facilities, which, in the case of the former, precludes the possibility of complete decomposition within one year and, in the latter two, make such claims by-and-large irrelevant.

FTC pointedly announced that others who may be making "oxo-degradable" and "oxo-biodegradable" claims and did not receive the Agency's missive, should not assume that they are in the clear. It is also safe to assume that the FTC's targets will not be limited to trash bag manufacturers, but to the manufacturers of any products making such claims. The FTC's enforcement history suggests that degradability claims will continue to be a focus of the agency, for which it has set a high bar.

This article is reprinted with permission of Packaging Digest magazine.