Advertising Law Alerts

November 4th, 2014

With Warning Letters, FTC Continues to Aggressively Police Environmental Marketing Claims

As part of its continuing efforts to combat deceptive environmental marketing claims, the Federal Trade Commission ("FTC") recently sent warning letters to 15 plastic bag advertisers cautioning them that their "oxodegradable," "oxo biodegradable," and "biodegradable" claims may be deceptive. According to the FTC, oxodegradable plastic is made with an additive that is intended to cause plastic bags to degrade in the presence of oxygen. The FTC warned that because most plastic bags are disposed of in landfills, the oxodegradable bags will not likely be exposed to enough oxygen to allow them to degrade any faster than ordinary plastic bags. The FTC warned that the advertising is misleading, then, because the bags will not degrade in the amount of time that consumers expect.

In the FTC's 2012 revision to its Guides For the Use of Environmental Marketing Claims, the FTC advised marketers that unqualified "degradable" (and similar) claims for items that are usually disposed in landfills, incinerators, or recycling facilities are deceptive because those locations don't offer conditions where decomposition can occur within one year.

The FTC asked the warning letter recipients to respond to the FTC by October 21, 2014 to report whether they planned to remove the degradable claims from their marketing or whether they possessed competent and reliable scientific evidence proving that their products can biodegrade as advertised. The FTC has not disclosed the names of the companies that received the letters.

These warning letters come on the heels of other recent enforcement efforts by the FTC in the green space. (See, e.g.,  In the Matter of Engineered Plastic Systems, LLC (2014);  In the Matter of American Plastic Lumber, Inc.;  In the Matter of Down to Earth Designs, Inc d/b/a gDiapers; In the Matter of N.E.W. Plastics Corp., a corporation, doing business as Renew Plastics. See also here). The FTC also pointed out that its focus on oxodegradable claims is not finished, and that any company making these claims in the marketplace should review its advertising and ensure legal compliance. As Jessica Rich, Director of the FTC's Bureau of Consumer Protection said, "Claims that products are environmentally friendly influence buyers, so it's important they be accurate."

For more information about "oxodegradable" or other  green claims, or about other advertising or marketing law issues, please contact Jeffrey Greenbaum at (212) 826-5525 or jgreenbaum@fkks.com,  Hannah Taylor at (212) 705 4849 or htaylor@fkks.com, or any other member of the Frankfurt Kurnit Advertising Group.