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Green Guides – Is it degradable or compostable?

greenhomeIn a previous blog we discussed the Federal Trade Commission’s (FTC) updates to the “Guides for the Use Environmental Marketing Claims,” 16CFR260 (the Green Guides) in October 2012.  One of the more problematic areas for manufacturers and advertisers that they believe their products are biodegradable or compostable is the confusion over what is the applicable standard to use before advertising this capability.

1.         Degradable – Let’s take a brief look at what constitutes degradable according to the FTC’s Green Guides.  The FTC takes the position that one needs to clarify in an advertisement whether the product and/or the package is degradable.  Degradation can occur through the process of biodegradation, oxo-degradation, oxo-biodegradation, or photodegradation.  In any case, it is up to the company that is marketing the product to have reliable scientific evidence that the item in its entirety will break down and return to nature and be degraded into elements found in nature.

To have this positive attribute, degradation of the product must occur within a reasonably short time after customary disposal.  As a rule of thumb, items that do not completely decompose within one year after customary disposal should not be advertised as degradable without clarification.  Furthermore, if the product does not degrade in a customary disposal (such as a typical landfill) setting, it would be deceptive to advertise this benefit.

Anything short of complete degradation within one year following disposal must be clarified and qualified in the advertisement.  These qualifications or limitations on the representation that the product is degradable must be prominent and clearly understandable by the average consumer.

2.         Compostable – An alternative to being degradable, are products that are advertised as compostable.  Again, the marketer making the claim that the product is compostable must have competent and reliable scientific evidence that all the materials in the item will break down or otherwise become part of a usable compost (such as soil enhancement or mulch) in a safe and timely manner.  This decomposition must be done at an appropriate composting facility or in a home compost unit.

It is considered deceptive to not qualify the representation if adding the product to the compost pile will not be broken down in a safe or timely manner.  It could also be deceptive if the claim suggests introducing this material into a landfill has environmental benefits.

As a general rule, a marketer cannot represent that its product is appropriate for compost if such a composting facility is not readily available to a substantial majority of consumers where the product is sold.  The FTC suggests that such facilities should be available to at least 60% of the consumers.

It would be deceptive under the FTC’s Green Guides if in the process of introducing the materials into a composting facility, the product actually releases toxins or other chemicals which prevents the compost from being usable.

In either case, when a manufacturer would like to advertise that its product is biodegradable or compostable, this should only be done if there is competent and reliable scientific support for such a claim.

About Susan J. Sadler

Susan J. Sadler is a founding Member of Dawda, Mann, Mulcahy & Sadler, PLC. She is the head of the Environmental, Energy and Sustainability practice group. She concentrates her legal practice on a broad spectrum of environmental issues.

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