Green Guides Update – Comments Closed, but the FTC Wanted to Hear More About Waste

On December 20, 2022, the FTC originally noticed its solicitation for public comments regarding potential updates and changes to the Green Guides (Guides for the Use of Environmental Marketing Claims) on the Federal Register. While the original deadline to submit comments was February 21, 2023, the Federal Trade Commission (“FTC”) extended the public comment period to April 24, 2023.

As a reminder, the Green Guides help advertisers avoid making environmental benefit claims that may mislead consumers. In December, Crowell addressed the FTC’s initial announcement seeking public comments and provided further background on the Green Guides. Specifically, we explained that the FTC provided a nineteen general-question framework and a twelve question, claim-specific framework (both with numerous subparts) to guide the public comments. The broad framework invited a host of stakeholders to give varied input on numerous aspects of the current Green Guides and issues addressed therein.

The Comment Period

Unsurprisingly, the comment period closed with an enormous number of public comments given the breadth of the FTC’s posed question framework and the potential depth of issues that the Green Guides may cover. Of the 7,066 comments, 1,364 are currently posted and available for public review. The comments came from many individual, independent, and even anonymous sources. Additionally, many industry and trade associations, environmental advocacy groups, and consumer advocacy groups provided robust comments attempting to address the FTC’s question framework.

The FTC’s Recyclable Workshop

From the initial question framework, Crowell anticipated that the recyclable-related claims would be a focus for the FTC. In the twelve question, claim-specific framework, the FTC posed two questions regarding recyclable claims, three questions regarding recycled content claims, and also sought comment on related claims, including those about degradability. To gather further opinion on recyclable claims, the FTC hosted a public workshop titled “Talking Trash at the FTC: Recyclable Claims and the Green Guides” on May 23, 2023. The event featured three panel discussions on 1) the recycling market and recycling advertisements, 2) consumer perception of recycling claims, and 3) the future of the Green Guides. The FTC is now seeking further public comments in connection with the issues discussed during the workshop through June 13, 2023. Thus far, 31 comments have been received.

The BIG QUESTION – Is the Availability standard appropriate?

The current Green Guides address recyclable claims at 16 CFR 260.12. The core requirement is a “product or package should not be marketed as recyclable unless it can be collected, separated, or otherwise recovered from the waste stream through an established recycling program for reuse or use in manufacturing or assembling another item.” 16 CFR 260.12(a). The guidance focuses on access to recycling facilities, providing “[w]hen recycling facilities are available to a substantial majority of consumers of communities where the item is sold, marketers can make unqualified recycling claims,” defining substantial majority as 60%. 16 CFR 260.12(b)(1). Some qualification is required if recycling facilities are available to less than a substantial majority of consumers and the level of qualification is based on the level of availability. Thus, for a product that has available recycling facilities for slightly less than a substantial majority, the qualification may state—“this product may not be recyclable in your area”—whereas, for a product that only has minimal available recycling facilities the qualification may state—“this product is recyclable only in a few communities that have appropriate recycling programs.” Overall, the current Green Guides are focused on the availability of recycling facilities.

The FTC’s question framework specifically asked if the 60% threshold should be updated and whether any consumer perception research supports either maintaining or updating the threshold. The workshop went beyond asking about the substantial majority threshold and questioned the appropriateness of the “available recycling facilities” test, with the FTC moderators asking each panel about the standard. Several panelists identified consumer perception research suggesting that consumers believe that products identified as recyclable are actually recycled and incorporated into new products, as opposed to simply collected at available facilities. Other panelists discussed the market for recyclable material, which directly impacts whether or not specific types of products are ultimately recycled. For example, certain products such as aluminum cans, paper, cardboard, and plastic bottles, tubs, and jugs (demarcated as RICs 1, 2, and 5) are generally recycled in most places, and as such, a post-consumer market exists for these types of items. However, there may not be a post-consumer market for other recyclable items. For example, some panelists highlighted the fact that the post-consumer market for glass may vary based on the color of the glass and available methods of collection.

In addition to the foregoing, panelists also noted that a number of consumers apparently engage in “wishcycling”, which means that they assume that certain items can be recycled, and as such, they throw them into the recycle bin. However, many of these items cannot be recycled at most materials recovery facilities (MRFs) that receive items from municipal collection programs, and their inclusion in the recycle bin often causes huge issues at the MRFs. For example, many consumers throw plastic bags and other plastic film into their recycling bins, and those bags can cause significant damage at MRFs. Similarly, many consumers throw lithium batteries into recycling bins, even though batteries can only be recycled via store or drop-off recycling programs.

The availability standard used to substantiate recyclable claims does not differentiate between types of recycling facilities or require any specific qualifications regarding the type of recycling facility that may be most appropriate. Based on the foregoing, some panelists suggested that producers of certain materials should be responsible for disclaiming appropriate recycling methods on such products. The disclaimer could simply be “drop-off,” “curbside,” or “single stream” depending on the anticipated recycling method, or negative disclaimers such as “inappropriate in most single stream systems” could be used.

However, the method of recycling likely will not be standard throughout the United States, and more importantly producers do not have control over the recycling systems available in communities across the country. Further, in many cases, product manufacturers may not be aware of whether there is a post-consumer market for recyclable items in various localities. Without location-specific knowledge of what items are actually recycled, it would be difficult for many manufacturers to make recyclable claims, even if the products are technically recyclable.

The takeaway – the FTC seemed amenable to either altering or wholesale discarding the availability standard for recyclable claims. This is especially true if consumers perceive recyclability claims to mean that products are actually recycled, as opposed to indicating a majority of consumers have access to a recycling facility. Retailers can likely expect either further substantiation requirements for recyclable claims or required disclaimers on product packaging.

Other Discussed Questions and Concerns:

Resin Identification Codes (RIC) – The Resin Identification Coding system was developed to give manufacturers and recyclers a uniform way to identify the resin type of plastics containers for proper sorting and recycling. RICs are an important tool for industry participants and are not intended for consumers. However, as described by multiple panelists, RICs have become an identifiable packaging symbol that consumers search for to determine if a plastic is recyclable. Moreover, many state laws actually require RICs on plastic products, and some require that the RIC be displayed inside of a chasing arrows symbol that many consumers associate with a recyclable claim. The issue here is that many plastic products, including those bearing RICs 3, 4, 6, and 7, are not currently recycled in most places. Some panelists advocated for the inclusion of a disclaimer alongside any RIC, especially those continuing to utilize the chasing arrow symbol, indicating that the product should not be placed in a recycling bin. California, through SB 343, prohibits the inclusion of the RIC code inside a chasing arrows symbol unless the specific product meets California’s statewide criteria for recyclability. Cal. Pub. Res. Code § 18015. These differing state laws introduce confusion to manufacturers that wish to implement a nationwide strategy that complies with all state laws.

Claims based on Product Content vs. Packaging – Beyond the availability of recycling facilities, the Green Guides provide guidance for recyclable claims given the portion of the product that is recyclable. “Marketers can make unqualified recyclable claims for a product or packing if the entire product or package, excluding minor incidental components, is recyclable.” 16 CFR 260.12(c). If a product is only partially recyclable, prominent qualifications are required. Certain panelists advocated for further clarification, especially regarding how to appropriately disclaim the recyclable portion of a product vs. the unrecyclable portion.

Emerging Technologies – Advanced/Molecular/Chemical Recycling – New methods of recycling were hotly debated during the panels. Various terms, ‘advanced,’ ‘molecular,’ and ‘chemical’ were used to describe an emerging method of recycling plastics that breaks down the plastics into raw materials for new uses. The panels, and audience attendees, debated whether chemical recycling could appropriately be described as recycling if the end results is harmful to the environment or does not actually keep new plastics from entering into the product stream. Some panelists suggested that chemical recycling may be able to accept all seven RICs, but currently most chemical recycling is only used for fuel production, not the creation of new plastics. Some panelists suggested that although the technology will continue to develop, for now chemical recycling would likely mislead consumers as it does not deliver clear environmental benefits.

Rulemaking – The panels concluded by discussing the appropriateness of rulemaking related to recyclable claims. A rule making would provide a clear standard across all jurisdictions, which may help deal with different treatment of labeling requirements like RICs. However, if the rule is strict it would limit marketing and disfavor flexibility and responsiveness to changes in recycling methods. Further, certain panelists suggested that a rule could lead producers to shy away from recyclable claims leading to reduced consumer recycling.

Future Workshops and Opportunities to Comment

Crowell expected the initial solicitation for public comment to lead to FTC proposed edits to the Green Guides, and potentially a rulemaking. This will still likely occur; however, it is now clear that the FTC will provide multiple avenues for comment on specific claim-related issues prior to officially proposing any edits. We expect the update to the Green Guides will be an ongoing endeavor throughout 2023 at least.

Crowell & Moring can counsel clients on specific advertising practices currently addressed in the Green Guides or assist clients in drafting comments on proposed edits to the various rounds of Green Guides workshops the FTC plans to host.