Companies touting eco-friendly products, biodegradable packaging, or other “green” claims should be aware that FTC enforcement relating to such environmental claims is on the rise in the current administration. On Feb. 3, 2010, the FTC sent letters (available at http://www.ftc.gov/bamboo) to 78 retailers nationwide, warning them that labeling rayon products as made of “bamboo” and/or “biodegradable” is potentially misleading and may lead to enforcement actions from the FTC.
The FTC’s recent warning letters come on the heels of several 2009 enforcement actions alleging companies falsely touted their rayon products were “bamboo” or “biodegradable.” The FTC acknowledged that bamboo was the cellulose source for the products, but contended that the final product was rayon. According to the FTC, using bamboo to create rayon requires harsh and toxic chemical processing and the resulting rayon did not retain the eco-friendly or antimicrobial properties of raw bamboo. Moreover, the FTC re-iterated its position that rayon products are not readily “biodegradable” as such textile products often end up in landfills where it is virtually impossible for such waste to break down within a reasonably short time under customary methods of disposal. See In the Matter of The M Group, Inc., et al. (http://www.ftc.gov/os/adjpro/d9340/index.shtm). Earlier in 2009, the FTC cracked down on both manufacturers and retailers of towelette wipes contending the products were falsely advertised as “biodegradable” because the wipes would not in fact biodegrade in a reasonably short time after customary disposal since those products are customarily disposed of in landfills, incinerators or recycling facilities. See In The Matter Of Dyna-E International, Inc., et al. (http://www.ftc.gov/os/adjpro/d9336/index.shtm).
Since 1992, the FTC has regulated environmental marketing claims through the Guides for the Use of Environmental Marketing Claims (known informally as the “Green Guides”), available on the FTC’s web site at http://www.ftc.gov/bcp/grnrule/guides980427.htm. The Green Guides define terms such as “biodegradable” and “recyclable” and other environmental marketing terms, and explain how marketers should substantiate such claims. Although there has been little enforcement of the Green Guides over the last decade, the Commission has already initiated seven enforcement actions during the new Obama administration. Moreover, the FTC is expected to release new updated Green Guides in 2010 and to continue to aggressively pursue enforcement of green washing claims as evidenced by its recent warning letters to retailers.