Reminding advertisers about the importance of environmental marketing claims, the Federal Trade Commission approved a final consent order in an enforcement action against Nice-Pak Products, Inc. for touting its moist toilet tissue as "flushable" and safe for sewer and septic systems.

Specifically, Nice-Pak claimed that the formulation of its wipes caused them to break apart shortly after being flushed, making them safe for septic systems, safe for sewer systems, and generally safe to flush. However, the FTC alleged that these claims were deceptive, in violation of Section 5 of the Federal Trade Commission Act, because the advertiser's testing did not reflect real-world household plumbing or septic conditions.

Furthermore, according to the complaint, Nice-Pak provided the "means and instrumentalities" for retailers—including BJ's Wholesale Club and Costco—to make similar misrepresentations by permitting them to sell the same formulation of its wipes under their own private labels.

The consent order prohibits Nice-Pak from misrepresenting that its wipes are safe to flush unless it can substantiate that they will disperse in a "sufficiently short amount of time" after flushing to prevent clogging and/or damage to household plumbing, sewage lines, septic systems, and other standard wastewater treatment equipment.

Any testing relied upon by the company must replicate the physical conditions of the environment where the wipes will be disposed, the FTC said, and the substantiation must be based on the expertise of professionals in the relevant area who have conducted and evaluated the testing in an objective manner using procedures generally accepted in the profession.

Any claims about the benefits, performance, or efficacy of moist toilet tissue are prohibited unless the statements are not misleading and the company relies on competent and reliable evidence—which may in some cases be competent and reliable scientific evidence. With respect to third parties, Nice-Pak is also banned from providing the means and instrumentalities to any other entities to make the prohibited misrepresentations.

To read the complaint and consent order in In the Matter of Nice-Pak Products, Inc., click here.

Why it matters: This case highlights the FTC's continuing scrutiny of environmental claims. In addition, this case is an interesting example of the FTC's use of the "means and instrumentalities" provision of the FTC Act. According to the complaint, Nice-Pak disseminated materials to trade consumers that induced false claims on packaging for private label versions of Nice-Pak wipes.