We have sometimes described finding materials that will quickly biodegrade in landfills as the Holy Grail of environmental marketing.  But who would have guessed it would come in the form of a polystyrene cup?

Well, not exactly, the NAD cautioned in a recent decision.  New Win Cup Holdings marketed the Vio cup, which it claimed would – thanks to a special additive — biodegrade 84.37% after 1,154 days in a wetter, biologically active landfill  (wetter, biologically active landfills typically are landfills that are managed to promote the presence of water and oxygen, both of which accelerate biodegradation.)  Further, Win Cup stated that it had used a specific ASTM test, that there was no certainty that the cups would continue to biodegrade further after 1,154 days, and, last of all, that a wetter, biologically active landfill might not exist in your area.  Now that’s what we call a qualified claim!

The challenger first questioned whether the cited ASTM test was an appropriate means of substantiation.  NAD rejected this argument.  It noted that New Win’s claim was limited to wetter, biologically active landfills and cited the FTC’s position in the ECM Biofilms matter that, in this context, the ASTM standard could be relied upon.

The challenger did no better with its second argument that many “wetter” landfills were not as wet as the conditions simulated in the ASTM test.  While the discussion got fairly technical and even delved into issues such as which parts of the country receive more than 40 inches of rain per year, NAD’s bottom line, which should cheer the heart of any in-house counsel, was that “in advertising claim substantiation, perfection is not required but, rather, . . . . a reasonable basis.”  Guided by this philosophy, NAD determined that the test conditions replicated conditions of at least a subset of wetter landfills.

The challenger did, however, have some success when it came to the clarity of the disclosures.  First, NAD was concerned that many consumers would not know what a wetter and biologically active landfill is (unless they’ve just read this blog or have a copy of the FTC’s Green Guides on their bed stands like we do.)  As a result, NAD was concerned that consumers were also unlikely to know whether there was one in their community.  Given NAD’s perception that such landfills are not yet widely available, NAD recommended that New Win modify its disclosure to say that such landfills “may not exist in your area.”  Finally, NAD also noted that certain disclosures were not prominent and that in some instances Win Cup implied a broader benefit of biodegradability beyond wetter and biologically active landfills.

So take advantage of the fact that it’s a leap year and raise your specially modified polystyrene cup high, secure in the knowledge that in 3 years and 58 days it will have biodegraded 84.37 percent.