[Federal Register Volume 61, Number 199 (Friday, October 11, 1996)]
[Rules and Regulations]
[Pages 53311-53320]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25938]
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FEDERAL TRADE COMMISSION
16 CFR Part 260
Guides for the Use of Environmental Marketing Claims
AGENCY: Federal Trade Commission.
ACTION: Final rule; Publication of revised guides.
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SUMMARY: The Federal Trade Commission (the ``FTC'' or ``Commission'')
issued its Guides for the Use of Environmental Marketing Claims
(``guides'') on July 28, 1992. 57 FR 36363 (Aug. 13, 1992), codified at
16 CFR Part 260. The guides included a provision for public comment and
review three years after adoption for the purpose of determining
whether there is a need for any modifications. In connection with the
three year review, the Commission sought public comment on a variety of
issues pertaining to the guides, 60 FR 38978 (July 31, 1995) and held a
two day Public Workshop-Conference on December 7 and 8, 1995. The
Commission has completed its review of the prefatory sections of the
guides, as well as the following sections: General Environmental
Benefits, Degradable/Biodegradable/Photodegradable, Recycled Content,
Source Reduction, Refillable, and Ozone Safe and Ozone Friendly. These
sections are being republished with only the minor revisions discussed
below.
The Commission is still in the process of reviewing the Compostable
and Recyclable guides. The original versions of these guides shall
remain in effect until further notice. See 16 CFR 260.7 (c) and (d).
Finally, the Commission is seeking further public comment on the issue
of whether product parts that can be reconditioned and/or reused in the
manufacture of new products should be considered ``recyclable'' under
the guides and whether products manufactured from such reconditioned
and/or reused parts should qualify as ``recycled'' under the guides.
DATES: Effective Date: October 4, 1996.
COMMENTS: Comments and/or data must be submitted on or before
November 25, 1996.
ADDRESSES: Although the Commission has concluded its general review of
the guides, it is seeking additional information on two discrete
issues: (1) Whether product parts that can be reconditioned and/or
reused in the manufacture of new products should qualify as
``recyclable'' under the guides and whether products manufactured from
such reconditioned and/or reused parts should qualify as ``recycled''
under the guides: and (2) any additional empirical evidence available
on consumer perception of ``recyclable'' and ``compostable'' claims.
Six paper copies of comments and/or data should be submitted to:
Secretary, Federal Trade Commission, Room H-159, Sixth and Pennsylvania
Ave., N.W., Washington, D.C. 20580. Comments should be identified as
``16 CFR Part 260--Comment.'' To encourage prompt and efficient review
and dissemination of the comments and data to the public, all comments
and data also should be submitted, if possible, in electronic form, on
either a 5\1/4\ or a 3\1/2\ inch computer disk, with a label on the
disk stating the name of the commenter and the name and version of the
word processing program used to create the document. (Programs based on
DOS are preferred. Files from other operating systems should be
submitted in ASCII text format to be accepted.) Individuals filing
comments or data need not submit multiple copies, and need not submit
such materials in electronic form.
The FTC will make this notice and all comments and data received in
response to this notice available to the public through the Internet,
to the extent technically possible. To access this notice and the
comments and data filed in response to this notice, access the World
Wide Web at the following address: http://www.ftc.gov. At this time,
the FTC cannot receive comments or data made in response to this notice
over the Internet.
FOR FURTHER INFORMATION CONTACT: Kevin M. Bank, (202) 326-2675,
Division of Advertising Practices, Bureau of Consumer Protection,
Federal Trade Commission, 6th and Pennsylvania Avenue, NW., Washington,
DC 20580.
SUPPLEMENTARY INFORMATION:
1. Background
The Guides for the Use of Environmental Marketing Claims or
``guides'' were issued by the Commission on July 28, 1992, and
[[Page 53312]]
published in the Federal Register on August 13, 1992 (57 FR 36363).
Like other industry guides issued by the Commission, the Environmental
Marketing Guides ``are administrative interpretations of laws
administered by the Commission for the guidance of the public in
conducting its affairs in conformity with legal requirements.'' 16 CFR
1.5. They provide the basis for advertisers' voluntary compliance with
the law, as well as simultaneous abandonment of unlawful practices.
Conduct inconsistent with the guides may result in corrective action by
the Commission if this conduct is found to be in violation of
applicable statutory provisions. The Commission promulgates industry
guides ``when it appears to the Commission that guidance as to the
legal requirements applicable to particular practices would be
beneficial in the public interest and would serve to bring about more
widespread and equitable observance of laws administered by the
Commission.'' 16 CFR 1.6.
The Environmental Marketing Guides indicate how the FTC will apply
Section 5 of the Federal Trade Commission Act (``FTC Act''), which
prohibits unfair or deceptive advertising claims, in the area of
environmental marketing claims.1 The guides apply to all forms of
marketing of products to the public, whether through advertisements,
labels, package inserts, or promotional materials.
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1 15 U.S.C. 45.
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The guides reiterate Commission policy regarding how Section 5
applies to advertising claims generally, as enunciated in the
Commission's Policy Statement on Deception,2 and its Policy
Statement on the Advertising Substantiation.3 Four general
principles are outlined that apply to all environmental marketing
claims: Qualifications and disclosures should be sufficiently clear and
prominent to prevent deception; claims should make clear whether they
apply to the product, the package or a component of either; claims
should not overstate an environmental attribute or benefit, expressly
or by implication; and comparative claims should be presented in a
manner that makes the basis for the comparison sufficiently clear to
avoid consumer deception.
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2 Federal Trade Commission Policy Statement on Deception,
appended to Cliffdale Assocs., Inc., 103 F.T.C. 110 (1984).
3 Federal Trade Commission Policy Statement Regarding
Advertising Substantiation, appended to Thompson Medical Co., 104
F.T.C. 648 (1984).
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In addition, the guides address eight specific categories of
environmental claims: general environmental benefits, ``degradable,''
``compostable,'' ``recyclable,'' ``recycled content,'' ``source
reduction,'' ``refillable,'' and ``ozone safe''/``ozone friendly.''
Each guide describes the basic elements necessary to substantiate the
claim, including examples of qualifications that may be used to avoid
deception. In addition, each guide is followed by several examples that
illustrate different uses of the particular term that do and do not
comport with the guides. In many of the examples, one or more options
are presented for qualifying a claim. The guides state that these
options are intended to provide a ``safe harbor'' for marketers who
want certainty about how to make environmental claims, but that they do
not represent the only permissible approach to qualifying a claim.
The guides included a provision that three years after adoption,
the Commission would seek public comment on ``whether and how the
guides need to be modified in light of ensuing developments.'' Pursuant
to this provision, the Commission sought comment on the guides in a
Federal Register Notice published on July 31, 1995 (60 FR 38978)
(hereinafter ``Notice''). The Commission sought comment on a number of
general issues relating to the guides' efficacy and the need, if any,
to revise or update the guides. The Commission also sought comment on a
number of specific issues related to particular environmental claims
addressed by the guides. In addition, the Notice announced that
Commission staff would be conducting a Public Workshop-Conference at
the conclusion of the comment period to discuss issues raised by the
written comments. Forty-four of the ninety-nine commenters participated
in the workshop, which was held on December 8 and 9, 1995.
2. Overview of Comments and Public Workshop-Conference
The ninety-nine comments received in response to the Notice came
from forty-five trade associations or trade association coalitions,
twenty-eight manufacturers, distributors or retailers, twelve
consumers, environmental or public advocacy organizations, one
standards organization, two certification organizations, two federal
government agencies or officials, four State government officials or
bodies, one city government official, one individual, one educational
institution, one consulting company, and one public-private recycling
coalition. Virtually all the commenters supported the guides in
general, although many recommended specific changes. A brief overview
of the comments received in response to questions posed in the Notice
follows. This summary is not intended to be comprehensive. The full
texts of the written comments and the transcript of the Public
Workshop-Conference are available for inspection and copying at the
Federal Trade Commission, 6th and Pennsylvania Avenue, N.W.,
Washington, D.C., Room 130. These materials are also accessible to the
public through the Internet on the World Wide Web at the following
address: http://www.ftc.gov
(a) Continuing Need for the Guides
The commenters who addressed whether there is a continuing need for
the guides all agreed that there is such a need. A handful of
commenters, while supporting the guides, indicated that they would
prefer a trade regulation rule because it would have the force of law
and preempt state laws regulating the use of environmental advertising
claims.
(b) The Costs and Benefits of the Guides to Consumers and Industry
There was a general consensus among commenters that the guides
benefit consumers by stemming the tide of spurious environmental
claims; bolster consumer confidence; increase the flow of specific and
accurate environmental information to consumers, enabling them to make
informed purchasing decisions; and encourage manufacturers to improve
the environmental characteristics of their products and packaging. The
commenters either felt that the guides do not impose any costs on
consumers or that any costs associated with the guides are
insignificant and greatly outweighed by their benefits. Several
commenters raised serious concerns, however, that the Recyclable guide
unnecessarily restricts the flow of information to consumers regarding
the recyclability of products. One commenter voiced similar concerns
about the Compostable guide.
In addition, commenters generally agreed that the guides benefit
industry by providing uniform, consistent guidance regarding the making
of non-deceptive environmental claims; promoting national consistency
in the treatment of environmental marketing claims; assisting
advertisers in determining what claims would likely lead to Commission
challenge; encouraging network review and industry self-regulation; and
allowing flexibility for manufacturers to improve the environmental
attributes of their products and to communicate those improvements to
consumers. For the most part, commenters stated that the
[[Page 53313]]
guides accomplish their goals without undue burden on industry,
although this view was not unanimous. Again, several commenters
complained of what they believe are undue restrictions placed on their
ability to make recyclable claims. They believe that recyclability is
an important product attribute and that they should be able to more
flexibly inform consumers regarding the recyclability of their
products.\4\
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\4\ Because of the serious concerns raised about the Recyclable
guide, the Commission is seeking additional data.
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(c) Effect of Changes in Technology or Economic Conditions
The commenters identified few technological or economic changes
that might impact the guides. A number of comments from industry cited
increases in recycling rates and the number of recycling programs as
justification for making the Recyclable guide less ``restrictive.''
Others stated that recycling rates have not increased sufficiently,
overall, to require modification of the guides. Several environmental
organizations pointed out that while the already high recycling rates
for some items such as newspapers and plastic soda bottles and milk
jugs have further increased, there has been little increase in the
recycling rates of less frequently recycled items like most other types
of plastic packaging. Therefore, they stated that the Recyclable guide
should not be made less ``restrictive.''
(d) Effect of the Guides in Fostering National Uniformity in the
Regulation of Environmental Claims
There was general agreement among the commenters that the guides
have helped promote uniformity in the regulation of environmental
marketing claims. There was also general agreement that any conflict
between the guides and some state laws is becoming less significant as
a result of states such as California, New York, and Rhode Island
either repealing or modifying pre-existing laws concerning
environmental marketing claims to be consistent with the guides.\5\
However, a few manufacturers continued to express concern that a lack
of national uniformity inhibited them from advertising the
environmental attributes of their products. They urged the Commission
to try to encourage more states to adopt the guides. A significant
number of commenters, especially industry representatives, voiced
strong opposition to changing the guides in any way that would
undermine the important state support the guides are now receiving.
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\5\ A potential conflict was identified by commenters who oppose
a change in the Commission's approach to the Society of the Plastics
Industry plastics resin identification code (``SPI code''). They
noted that the SPI code is required by laws in thirty-nine states to
be placed on plastic containers and that if the Commission advises
that the use of the code is deceptive on products and requires that
it be changed there will be a conflict.
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(e) International Developments Affecting the Guides
A number of commenters noted that the International Standards
Organization (ISO) is in the process of drafting standards for
environmental labeling claims made by manufacturers and by third-party
awarders of eco-seals. Some commenters encouraged the Commission to try
to harmonize with ISO to ensure international uniformity. Other
commenters noted that Canada, Japan, and a number of European countries
have adopted official eco-seal programs to award seals to products they
consider environmentally superior. Most commenters who referenced such
programs view the use of some eco-seals, without further qualification,
as potentially vague and exaggerated general environmental benefit
claims. Several of these commenters stated that such seals may impose
trade barriers because, in practice, they favor manufacturers in the
country which awards the seal.
(f) Effect of the Guides in the Marketplace
The Notice sought comment as to the extent to which the guides have
reduced consumer skepticism about environmental claims, the degree of
industry compliance with the guides, and the impact of the guides on
the flow of information to consumers. Commenters who addressed the
issue of consumer skepticism believe that it has lessened but continues
to exist. Many commenters indicated their belief that there is general
industry compliance with the guides. Some commenters, however,
complained that there are still too many unqualified ``recyclable''
claims being made. Others were concerned by the number of broad,
unqualified environmental benefit claims still in the marketplace, like
``environmentally safe'' and ``environmentally friendly.'' There was
general agreement that the number of environmental claims in the
marketplace has not diminished, although certain claims, like
degradable claims for products that are typically disposed of in
landfills, are now rare. Although most commenters believe that the
guides encourage the flow of useful information to consumers, several
industry members complained that the guides reduce the flow of useful
information by restricting their ability to make what they consider to
be truthful ``recyclable'' claims. Furthermore, one trade association
submitted a survey of its members in which 56% of those responding
indicated that they thought that the guides had generally inhibited
their use of environmental marketing claims.
(g) Specific Claims
Over a dozen commenters urged the Commission to make no changes at
all to the guides, while some opposed making specific changes that were
recommended by other commenters. Many commenters asked that a few
specific changes be made. Recyclability issues generated the most
comments, including whether unqualified claims imply local and national
availability of facilities to consumers; the adequacy of various
qualifications suggested in the guides to convey the fact of limited
availability of facilities for recycling many products; the meaning of
``Please Recycle'' on package labels and whether the guides should
address them; how consumers interpret the unqualified three chasing
arrows symbol; and the guides' treatment of the Society of the Plastics
Industry plastic resin identification code (SPI code). The other
primary areas of discussion included whether ``no CFCs'' claims are
deceptive for products that do not contain upper ozone depleters, but
do contain volatile organic compounds (VOCs) which can contribute to
smog, and whether the guides should require disclosures of post-
consumer recycled content for ``recycled'' claims. Several commenters
discussed the issue of whether the guides should address claims based
on ``lifecycle'' analysis and the use of environmental seals and
certifications by marketers. A number of commenters suggested that
additional claims be covered by the guides, including non-toxic claims,
chlorine-free claims, and claims that a product is ``environmentally
preferable.'' No commenter suggested that any of the eight specific
categories of claims covered by the guides be dropped.
(h) Empirical Evidence
The Notice solicited new evidence concerning consumer perception of
environmental claims. Only a small amount of consumer research was
submitted on how consumers perceive specific claims.
[[Page 53314]]
3. Request for Further Comment
The Commission specifically sought comment as to whether consumers
perceive that products made from reconditioned parts that would
otherwise have been thrown away are ``recycled'' products, and what
modifications, if any, should be made to the guides to address these
consumer perceptions. The Commission received no empirical evidence in
response to this request, but did receive several comments discussing
this issue. The Commission has determined to give further consideration
to this question, as well as to the related issue of whether product
parts that can be reconditioned and/or reused in the manufacture of new
products should be considered ``recyclable'' if adequate
infrastructures for collecting the parts are available. The Commission
is seeking consumer perception data on these issues, as well as further
information responsive to the questions outlined below.
The Recycled guide defines ``recycled content'' as material that a
marketer can substantiate has been recovered or otherwise diverted from
the waste stream. This could be interpreted to include products made
from reconditioned and/or reused parts, as well as products made from
recycled raw materials like steel from melted down cans. However, the
Recyclable guide states further that for something to be recyclable it
must be diverted from the solid waste stream for use as ``raw materials
in the manufacture or assembly of a new product or package.''
Therefore, product parts that are capable of being reconditioned and/or
reused in the manufacture of new products are not considered
``recyclable'' under the guides, because the parts are not actually
reprocessed into raw materials before reuse. In addition, products
manufactured from such parts may not be considered ``recycled'' under
the guides.
The Commission is seeking comment and consumer perception data on
whether product parts that can be reconditioned and/or reused in the
manufacture of new products should be considered ``recyclable'' under
the guides (assuming adequate infrastructures for collecting the parts
are available), and on whether products manufactured from reconditioned
and/or reused parts should be considered ``recycled.'' In addition, the
Commission seeks comment on whether consumers perceive that the term
``recycled'' conveys information about the quality of a product, and
whether consumers' concerns about quality differ with respect to
products made from reconditioned or reused parts and those made from
recycled raw materials. The Commission also requests comment on whether
consumer perception of a product being recycled would be affected if
marketers of products made from reconditioned and/or reused parts could
prove that the quality of those products is substantially equivalent to
that of comparable products made from recycled raw materials.
The Commission has received some consumer survey evidence on the
issue of whether consumers consider products made from reconditioned
parts to be ``recycled.'' This evidence is responsive to a question
included in a survey conducted by the Council on Packaging in the
Environment (COPE) in April 1996. The Commission is placing this survey
evidence on the public record and seeks comment on it. The survey,
including this evidence, is available for inspection and copying at the
Federal Trade Commission, 6th and Pennsylvania Avenue, N.W.,
Washington, D.C., Room 130.
The Commission also solicits public comment on the following
questions relating to reconditioned and reused parts:
1. Do consumers generally perceive that parts that can be taken
from products for reconditioning and/or reuse in the manufacture of new
products are ``recyclable''? Why or why not? Please provide any
empirical data.
2. Do consumers generally perceive that products manufactured from
reconditioned and/or reused parts are ``recycled''? Why or why not?
Please provide any empirical data.
3. Do consumers generally perceive that the term ``recycled''
conveys information about the quality of a product? Do consumers'
concerns about product quality differ with respect to whether a product
is made from reconditioned and/or reused parts recovered from the solid
waste stream or from raw materials like steel from melted cans
recovered from the solid waste stream? Please provide any empirical
data.
4. Would consumer perception about whether a product is or is not
``recycled'' be affected if marketers of products made from
reconditioned and/or reused parts could prove that those products are
``substantially equivalent'' in quality to comparable products made
from recycled raw materials? If so, how? Please provide any empirical
data.
5. What evidence should be required to show that products
containing reconditioned and/or reused parts are ``substantially
equivalent'' in quality to comparable products made from recycled raw
materials? Please provide any empirical data.
6. Are consumers likely to be deceived about the quality of
products made from reconditioned and/or reused parts if they are
advertised as ``recycled''? If so, how should the Commission address
this concern?
7. What are the costs and benefits to consumers and to industry if:
(a) Parts that can be taken from products for reconditioning and/or
reuse in the manufacture of new products are marketed as
``recyclable''? or
(b) Products manufactured from reconditioned and/or reused parts
are marketed as ``recycled'' products? Please provide any empirical
data.
4. Modifications to the Guides
After careful review of the comments and the discussion at the
Public Workshop-Conference, the Commission has determined to make
modifications to the General Environmental Benefit Claims guide, the
Degradable/Biodegradable/Photodegradable guide, the Recycled Content
guide and the Ozone Safe/Ozone Friendly guide. Some modifications have
also been made in the prefatory sections. The changes have been made to
ensure that the guides continue to reflect current technology and
changing consumer perception, as well as to address newer environmental
claims in the marketplace that the Commission believes have been, or
could be, used in a deceptive manner.6 In deciding whether to
modify the guides, the Commission analyzed what the covered claims
convey to consumers, and the extent to which available empirical
evidence indicates that consumer perception of particular claims has
changed. Some changes were also made for purposes of clarification.
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\6\ No changes have been made to the Source Reduction guide or
the Refillable guide.
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The Commission is still in the process of reviewing the Recyclable
and Compostable guides and will not reissue them until it evaluates the
results of ongoing consumer research. One purpose of this research is
to examine whether these claims continue to imply that consumers can
recycle or compost the advertised product in their own area. The
research will be placed on the public record when it is completed. The
current Recyclable and Compostable guides, codified at 16 C.F.R. 260.7
(c)-(d) (1996), remain in effect until the Commission completes its
evaluation. While the review of these two guides continues, the
Commission seeks the submission of any further empirical data on
consumers' understanding and
[[Page 53315]]
perceptions of ``recyclable'' and ``compostable'' claims. Additional
data may be filed with the Secretary of the Commission in the manner
noted above.
Changes to the guides are as follows:
(a) Modifications to the Prefatory Sections.
(i) Review Procedure.
The Commission has updated the section on the review procedure for
the guides. This section now states that the Environmental Marketing
Guides will be reviewed in the future as part of the Commission's
general program of reviewing all industry guides on an ongoing basis.
The provision permitting parties to petition the Commission to amend
the guides in light of substantial new evidence has not been changed.
(ii) Interpretation and Substantiation of Environmental Marketing
Claims.
The definition of ``competent and reliable scientific evidence''
has been clarified and is now consistent with the language used in
recent Commission consent orders. Such evidence is now defined as
``tests, analyses, research, studies or other evidence based on the
expertise of professionals in the relevant area, that has been
conducted and evaluated in an objective manner by persons qualified to
do so, using procedures generally accepted in the profession to yield
accurate and reliable results.''
(iii) General Principles.
The Commission has added a new example to this section under the
subsection Overstatement of An Environmental Benefit. This example is
based on the consent agreement in the Mr. Coffee, Inc. case,7
where the Commission challenged a ``chlorine-free process'' claim for
paper coffee filters that, while not bleached with elemental chlorine,
had been bleached in a new process with a chlorine compound. The
Commission alleged that the new bleaching process contained some
elemental chlorine which continued to release a significant amount of
the environmentally harmful dioxins and furans associated with
elemental chlorine bleaching, though in lesser amounts. The example
explains that a ``chlorine-free process'' claim is likely to overstate
the environmental benefit provided by a product if the manufacturing
process continues to release into the environment a significant, even
if reduced, amount of the same harmful byproducts associated with
chlorine bleaching. The example illustrates one possible way to make
substantiated claims of this nature, i.e., that the filters are
bleached with a process that ``substantially reduces, but does not
eliminate, harmful substances associated with chlorine bleaching.''
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\7\ Mr. Coffee, Inc., Docket C-3486 (March 25, 1994).
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(iv) Preamble to Environmental Marketing Claims Section.
The footnote on lifecycle claims stated that the guides do not
address claims based on a ``lifecycle'' theory of environmental benefit
because such analyses are still in their infancy, and the Commission
lacks sufficient information on which to base guidance. The Commission
continues to lack sufficient information to provide guidance on these
claims; however, it is no longer accurate to continue to characterize
``lifecycle'' analyses as being in their ``infancy.'' The footnote has
been modified to state that the guides do not currently address these
types of claims, because the Commission lacks sufficient information on
which to base guidance.
(b) General Environmental Benefit Claims Guide.
Three new examples have been added to this guide. One illustrates
that in some contexts, a ``non-toxic'' claim may convey to consumers
that a product does not pose any risk to human health or the
environment, and that the claim would be deceptive if the product does,
in fact, pose a significant risk to either human health or the
environment. This example is based on the Orkin Exterminating Company,
Inc. and Safe Brands Corp., et al. cases.8 In Orkin, the
Commission alleged that the company had made unsubstantiated
``practically non-toxic'' claims for lawn care pesticide products which
implied that the products did not pose any significant risk to human
health or the environment. In Safe Brands, the Commission charged that
advertisements for a propylene glycol-based antifreeze product, which
included claims that the product was ``essentially non-toxic'' and
``the ultimate in * * * environmental safety,'' implied that the
product was absolutely safe for people, pets and the environment. The
example states that phrases like ``essentially non-toxic'' and
``practically non-toxic'' can convey absolute claims of safety both to
health and to the environment when used to advertise products such as
lawn care pesticides and antifreeze. The example states that such
claims are deceptive if the product does, in fact, pose a significant
risk to human health or the environment.
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\8\ Orkin Exterminating Company, Inc., Docket C-3495 (May 25,
1994); Safe Brands Corp., et al., Docket C-3647 (March 26, 1996).
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The other new examples address ``seal of approval'' and
``environmentally preferable'' claims. Several commenters noted that
when environmental seals of approval are found on product labels, they
have been placed there to indicate that the products are
environmentally superior to others. Based on these comments, the
Commission believes that consumers would interpret environmental seals
of approval that are not accompanied by qualifying text to mean that
the product is environmentally superior to other products. The
Commission also believes that unqualified ``environmentally
preferable'' claims are likely to convey broad messages of
environmental superiority to consumers.
The example on ``seal of approval'' claims states that the use of
an environmental seal with no textual qualification, or inadequate
qualification, is likely to convey to consumers that the product is
environmentally superior to other products. Therefore, if the
manufacturer cannot substantiate this broad claim of environmental
superiority, the claim is likely to be deceptive. The claim would not
be deceptive, however, if the manufacturer qualified it with clear and
prominent language limiting the superiority representation to the
particular product attribute or attributes for which the claim of
environmental superiority could be substantiated, provided that no
other deceptive implications were created by the context. The new
example addressing ``environmentally preferable'' claims states
similarly that the term is likely to convey a broad claim of
environmental superiority to consumers, which must be substantiated or
adequately qualified.
(c) Degradable/Biodegradable/Photodegradable Guide.
A new example has been added to address concerns raised about a
possible conflict between the degradable guide and the requirements of
federal and state laws concerning performance standards for
photodegradability of certain products. The example states that
symbols, such as a diamond logo, that are required by some state laws
to appear on certain photodegradable plastics to indicate that they
meet performance standards to ensure they will photodegrade if
littered, do not constitute claims of degradability. A footnote has
also been added to clarify that the guides' treatment of degradable
claims is intended to help prevent consumer deception and is not
intended to establish performance standards for laws intended to ensure
that products degrade when littered so as to a avoid a potential hazard
to wildlife.
(d) Recycled Content Guide.
[[Page 53316]]
Several examples have been amended for purposes of clarification
and one new example has been added to this Guide. The new example
addresses the use of the ``three chasing arrows'' symbol without any
textual qualification. Consumer perception data 9 indicates that
the use of the three chasing arrows symbol by itself conveys to
consumers that a product is made entirely from recycled material and
that it is recyclable. The new example provides that if a marketer of a
product bearing the three chasing arrows symbol without qualification
cannot substantiate both of these claims, it should qualify the claim
to indicate whether the symbol refers to the recyclability and/or
recycled content of the product. The example states that further
qualification of these claims may be necessary. For instance, a
recycled content claim should also disclose the percentage of recycled
content, if that amount is less than 100%.
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\9\ See ``Public Understanding of the Chasing Arrows Symbol and
Recycled Content Claims,'' conducted for the Paper Recycling
Coalition and placed on the public record on July 28, 1995.
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Modifications have been made to several examples in the Recycled
Content guide for purposes of consistency and clarification. Example 1
has been modified to eliminate the reference to scraps from ``trimming
finished products'' in the description of materials that do not qualify
as pre-consumer recycled material, i.e., those manufacturing byproducts
that are normally reused by industry in the original manufacturing
process after only minimal reprocessing. The phrase scraps from
``trimming finished products'' could be misinterpreted to mean that
scraps or trimmings from finished paper products, which require
significant reprocessing before they can be used again in the
manufacture of other paper products, do not qualify as pre-consumer
recycled material. The new example, therefore, deletes the reference to
scraps from ``trimming finished products.''
In addition, modifications have been made to Examples 3, 4 and 9 to
make them consistent with Example 7. Example 7 permits recycled content
claims for paper to be made on a fiber weight basis (i.e., stated as
``contains X% recycled fiber''), whereas Examples 3, 4 and 9 contain
language in which the recycled content of a paper product is expressed
as a percentage of the total weight of the paper. EPA regulations
regarding federal government procurement of recycled content paper
products use the ``fiber weight'' standard,10 as do a number of
state procurement laws. To promote consistency and eliminate any
possible ambiguity, the hypothetical claims in Examples 3, 4 and 9 are
now expressed in terms of a fiber weight, rather than total weight
basis.
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\10\ See 61 FR 26986 (May 29, 1996).
---------------------------------------------------------------------------
(e) Ozone Safe and Ozone Friendly Guide.
The Ozone Safe/Ozone Friendly guide has been modified to state, not
only that it is deceptive to misrepresent that a product is safe or
``friendly'' to the ozone layer, but also that it is deceptive to
misrepresent that a product is safe or ``friendly'' to the atmosphere.
In addition, an example has been added to the guide to illustrate that
a claim such as ``ozone friendly'' conveys to consumers that a product
is harmless not only to the upper ozone layer but to the atmosphere as
a whole. Such claims are, therefore, deceptive for products that
contain volatile organic compounds (VOCs), ingredients that can
contribute to ground level ozone, a component of smog. This additional
example is based on consumer perception data obtained by the Commission
since the guides were issued.11 These data indicate that consumers
interpret an ``Ozone Friendly'' claim to mean that a product does not
contribute to smog or air pollution generally, and is safe for the
atmosphere as whole.
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\11\ See Maronick and Andrews, ``Consumers' Interpretations of
Environmental Claims,'' March 10, 1993, placed on the public record
with the Request for Comment on July 28, 1995.
---------------------------------------------------------------------------
A change has also been made to Example 1 of the Ozone Safe/Ozone
Friendly guide. This example lists certain chemicals that are
classified as ``Class I'' ozone depleters in Title VI of the Clean Air
Act Amendments of 1990.12 The Amendments grant EPA the authority
to designate other chemicals as ozone depleters. Since the guides were
issued in 1992, EPA has designated two additional chemicals, methyl
bromide and hydrobromofluorocarbons (HBFCs) as Class I ozone depleters.
These two chemicals have now been added to the list of Class I ozone
depleters in Example 1.
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\12\ 42 U.S.C. 7671 et seq.
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5. Text of Modified Guides
List of Subjects in 16 CFR Part 260
Advertising, Environmental protection, Labeling, Trade practices.
For the reasons set forth in the preamble, 16 CFR Part 260 is
amended by revising sections 260.1 through 260.6, 260.7 (a) and (b),
260.7 (e) through (h), and 260.8 to read as follows:
PART 260--GUIDES FOR THE USE OF ENVIRONMENTAL MARKETING CLAIMS
Sec.
260.1 Statement of purpose.
260.2 Scope of guides.
260.3 Structure of the guides.
260.4 Review procedure.
260.5 Interpretation and substantiation of environmental marketing
claims.
260.6 General principles.
260.7 Environmental marketing claims.
260.8 Environmental assessment.
Authority: 15 U.S.C. 41-58.
Sec. 260.1 Statement of purpose.
The guides in this part represent administrative interpretations of
laws administered by the Federal Trade Commission for the guidance of
the public in conducting its affairs in conformity with legal
requirements. These guides specifically address the application of
Section 5 of the FTC Act to environmental advertising and marketing
practices. They provide the basis for voluntary compliance with such
laws by members of industry. Conduct inconsistent with the positions
articulated in these guides may result in corrective action by the
Commission under Section 5 if, after investigation, the Commission has
reason to believe that the behavior falls within the scope of conduct
declared unlawful by the statute.
Sec. 260.2 Scope of guides.
These guides apply to environmental claims included in labeling,
advertising, promotional materials and all other forms of marketing,
whether asserted directly or by implication, through words, symbols,
emblems, logos, depictions, product brand names, or through any other
means. The guides apply to any claim about the environmental attributes
of a product or package in connection with the sale, offering for sale,
or marketing of such product or package for personal, family or
household use, or for commercial, institutional or industrial use.
Because the guides are not legislative rules under Section 18 of
the FTC Act, they are not themselves enforceable regulations, nor do
they have the force and effect of law. The guides themselves do not
preempt regulation of other federal agencies or of state and local
bodies governing the use of environmental marketing claims. Compliance
with federal, state or local law and regulations concerning such
claims, however, will not necessarily
[[Page 53317]]
preclude Commission law enforcement action under Section 5.
Sec. 260.3 Structure of the guides.
The guides are composed of general principles and specific guidance
on the use of environmental claims. These general principles and
specific guidance are followed by examples that generally address a
single deception concern. A given claim may raise issues that are
addressed under more than one example and in more than one section of
the guides. In many of the examples, one or more options are presented
for qualifying a claim. These options are intended to provide a ``safe
harbor'' for marketers who want certainty about how to make
environmental claims. They do not represent the only permissible
approaches to qualifying a claim. The examples do not illustrate all
possible acceptable claims or disclosures that would be permissible
under Section 5. In addition, some of the illustrative disclosures may
be appropriate for use on labels but not in print or broadcast
advertisements and vice versa. In some instances, the guides indicate
within the example in what context or contexts a particular type of
disclosure should be considered.
Sec. 260.4 Review procedure.
The Commission will review the guides as part of its general
program of reviewing all industry guides on an ongoing basis. Parties
may petition the Commission to alter or amend these guides in light of
substantial new evidence regarding consumer interpretation of a claim
or regarding substantiation of a claim. Following review of such a
petition, the Commission will take such action as it deems appropriate.
Sec. 260.5 Interpretation and substantiation of environmental
marketing claims.
Section 5 of the FTC Act makes unlawful deceptive acts and
practices in or affecting commerce. The Commission's criteria for
determining whether an express or implied claim has been made are
enunciated in the Commission's Policy Statement on Deception.13 In
addition, any party making an express or implied claim that presents an
objective assertion about the environmental attribute of a product or
package must, at the time the claim is made, possess and rely upon a
reasonable basis substantiating the claim. A reasonable basis consists
of competent and reliable evidence. In the context of environmental
marketing claims, such substantiation will often require competent and
reliable scientific evidence, defined as tests, analyses, research,
studies or other evidence based on the expertise of professionals in
the relevant area, conducted and evaluated in an objective manner by
persons qualified to do so, using procedures generally accepted in the
profession to yield accurate and reliable results. Further guidance on
the reasonable basis standard is set forth in the Commission's 1983
Policy Statement on the Advertising Substantiation Doctrine. 49 FR
30999 (August 2, 1984); appended to Thompson Medical Co., 104 F.T.C.
648 (1984). The Commission has also taken action in a number of cases
involving alleged deceptive or unsubstantiated environmental
advertising claims. A current list of environmental marketing cases
and/or copies of individual cases can be obtained by calling the FTC
Public Reference Branch at (202) 326-2222.
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\13\ Cliffdale Associates, Inc., 103 F.T.C. 110, at 176, 176
n.7, n.8, Appendix, reprinting letter dated Oct. 14, 1983, from the
Commission to The Honorable John D. Dingell, Chairman, Committee on
Energy and Commerce, U.S. House of Representatives (1984)
(``Deception Statement'').
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Sec. 260.6 General principles.
The following general principles apply to all environmental
marketing claims, including, but not limited to, those described in
Sec. 260.7. In addition, Sec. 260.7 contains specific guidance
applicable to certain environmental marketing claims. Claims should
comport with all relevant provisions of these guides, not simply the
provision that seems most directly applicable.
(a) Qualifications and disclosures: The Commission traditionally
has held that in order to be effective, any qualifications or
disclosures such as those described in the guides in this part should
be sufficiently clear and prominent to prevent deception. Clarity of
language, relative type size and proximity to the claim being
qualified, and an absence of contrary claims that could undercut
effectiveness, will maximize the likelihood that the qualifications and
disclosures are appropriately clear and prominent.
(b) Distinction between benefits of product and package: An
environmental marketing claim should be presented in a way that makes
clear whether the environmental attribute or benefit being asserted
refers to the product, the product's packaging or to a portion or
component of the product or packaging. In general, if the environmental
attribute or benefit applies to all but minor, incidental components of
a product or package, the claim need not be qualified to identify that
fact. There may be exceptions to this general principle. For example,
if an unqualified ``recyclable'' claim is made and the presence of the
incidental component significantly limits the ability to recycle the
product, then the claim would be deceptive.
Example 1: A box of aluminum foil is labeled with the claim
``recyclable,'' without further elaboration. Unless the type of
product, surrounding language, or other context of the phrase
establishes whether the claim refers to the foil or the box, the
claim is deceptive if any part of either the box or the foil, other
than minor, incidental components, cannot be recycled.
Example 2: A soft drink bottle is labeled ``recycled.'' The
bottle is made entirely from recycled materials, but the bottle cap
is not. Because reasonable consumers are likely to consider the
bottle cap to be a minor, incidental component of the package, the
claim is not deceptive. Similarly, it would not be deceptive to
label a shopping bag ``recycled'' where the bag is made entirely of
recycled material but the easily detachable handle, an incidental
component, is not.
(c) Overstatement of environmental attribute: An environmental
marketing claim should not be presented in a manner that overstates the
environmental attribute or benefit, expressly or by implication.
Marketers should avoid implications of significant environmental
benefits if the benefit is in fact negligible.
Example 1: A package is labeled, ``50% more recycled content
than before.'' The manufacturer increased the recycled content of
its package from 2 percent recycled material to 3 percent recycled
material. Although the claim is technically true, it is likely to
convey the false impression that the advertiser has increased
significantly the use of recycled material.
Example 2: A trash bag is labeled ``recyclable'' without
qualification. Because trash bags will ordinarily not be separated
out from other trash at the landfill or incinerator for recycling,
they are highly unlikely to be used again for any purpose. Even if
the bag is technically capable of being recycled, the claim is
deceptive since it asserts an environmental benefit where no
significant or meaningful benefit exists.
Example 3: A paper grocery sack is labeled ``reusable.'' The
sack can be brought back to the store and reused for carrying
groceries but will fall apart after two or three reuses, on average.
Because reasonable consumers are unlikely to assume that a paper
grocery sack is durable, the unqualified claim does not overstate
the environmental benefit conveyed to consumers. The claim is not
deceptive and does not need to be qualified to indicate the limited
reuse of the sack.
Example 4: A package of paper coffee filters is labeled ``These
filters were made with a chlorine-free bleaching process.'' The
filters are bleached with a process that releases into the
environment a reduced, but still significant, amount of the same
harmful byproducts associated with chlorine bleaching. The claim is
likely to overstate the product's benefits because it is likely to
be
[[Page 53318]]
interpreted by consumers to mean that the product's manufacture does
not cause any of the environmental risks posed by chlorine
bleaching. A claim, however, that the filters were ``bleached with a
process that substantially reduces, but does not eliminate, harmful
substances associated with chlorine bleaching'' would not, if
substantiated, overstate the product's benefits and is unlikely to
be deceptive.
(d) Comparative claims: Environmental marketing claims that include
a comparative statement should be presented in a manner that makes the
basis for the comparison sufficiently clear to avoid consumer
deception. In addition, the advertiser should be able to substantiate
the comparison.
Example 1: An advertiser notes that its shampoo bottle contains
``20% more recycled content.'' The claim in its context is
ambiguous. Depending on contextual factors, it could be a comparison
either to the advertiser's immediately preceding product or to a
competitor's product. The advertiser should clarify the claim to
make the basis for comparison clear, for example, by saying ``20%
more recycled content than our previous package.'' Otherwise, the
advertiser should be prepared to substantiate whatever comparison is
conveyed to reasonable consumers.
Example 2: An advertiser claims that ``our plastic diaper liner
has the most recycled content.'' The advertised diaper does have
more recycled content, calculated as a percentage of weight, than
any other on the market, although it is still well under 100%
recycled. Provided the recycled content and the comparative
difference between the product and those of competitors are
significant and provided the specific comparison can be
substantiated, the claim is not deceptive.
Example 3: An ad claims that the advertiser's packaging creates
``less waste than the leading national brand.'' The advertiser's
source reduction was implemented sometime ago and is supported by a
calculation comparing the relative solid waste contributions of the
two packages. The advertiser should be able to substantiate that the
comparison remains accurate.
Sec. 260.7 Environmental marketing claims.
Guidance about the use of environmental marketing claims is set
forth in this section. Each guide is followed by several examples that
illustrate, but do not provide an exhaustive list of, claims that do
and do not comport with the guides. In each case, the general
principles set forth in Sec. 260.6 should also be followed.14
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\14\ These guides do not currently address claims based on a
``lifecycle'' theory of environmental benefit. The Commission lacks
sufficient information on which to base guidance on such claims.
---------------------------------------------------------------------------
(a) General environmental benefit claims: It is deceptive to
misrepresent, directly or by implication, that a product or package
offers a general environmental benefit. Unqualified general claims of
environmental benefit are difficult to interpret, and depending on
their context, may convey a wide range of meanings to consumers. In
many cases, such claims may convey that the product or package has
specific and far-reaching environmental benefits. As explained in the
Commission's Ad Substantiation Statement, every express and material,
implied claim that the general assertion conveys to reasonable
consumers about an objective quality, feature or attribute of a product
must be substantiated. Unless this substantiation duty can be met,
broad environmental claims should either be avoided or qualified, as
necessary, to prevent deception about the specific nature of the
environmental benefit being asserted.
Example 1: A brand name like ``Eco-Safe'' would be deceptive if,
in the context of the product so named, it leads consumers to
believe that the product has environmental benefits which cannot be
substantiated by the manufacturer. The claim would not be deceptive
if ``Eco-Safe'' were followed by clear and prominent qualifying
language limiting the safety representation to a particular product
attribute for which it could be substantiated, and provided that no
other deceptive implications were created by the context.
Example 2: A product wrapper is printed with the claim
``Environmentally Friendly.'' Textual comments on the wrapper
explain that the wrapper is ``Environmentally Friendly because it
was not chlorine bleached, a process that has been shown to create
harmful substances.'' The wrapper was, in fact, not bleached with
chlorine. However, the production of the wrapper now creates and
releases to the environment significant quantities of other harmful
substances. Since consumers are likely to interpret the
``Environmentally Friendly'' claim, in combination with the textual
explanation, to mean that no significant harmful substances are
currently released to the environment, the ``Environmentally
Friendly'' claim would be deceptive.
Example 3: A pump spray product is labeled ``environmentally
safe.'' Most of the product's active ingredients consist of volatile
organic compounds (VOCs) that may cause smog by contributing to
ground-level ozone formation. The claim is deceptive because, absent
further qualification, it is likely to convey to consumers that use
of the product will not result in air pollution or other harm to the
environment.
Example 4: A lawn care pesticide is advertised as ``essentially
non-toxic'' and ``practically non-toxic.'' Consumers would likely
interpret these claims in the context of such a product as applying
not only to human health effects but also to the product's
environmental effects. Since the claims would likely convey to
consumers that the product does not pose any risk to humans or the
environment, if the pesticide in fact poses a significant risk to
humans or environment, the claims would be deceptive.
Example 5: A product label contains an environmental seal,
either in the form of a globe icon, or a globe icon with only the
text ``Earth Smart'' around it. Either label is likely to convey to
consumers that the product is environmentally superior to other
products. If the manufacturer cannot substantiate this broad claim,
the claim would be deceptive. The claims would not be deceptive if
they were accompanied by clear and prominent qualifying language
limiting the environmental superiority representation to the
particular product attribute or attributes for which they could be
substantiated, provided that no other deceptive implications were
created by the context.
Example 6: A product is advertised as ``environmentally
preferable.'' This claim is likely to convey to consumers that this
product is environmentally superior to other products. If the
manufacturer cannot substantiate this broad claim, the claim would
be deceptive. The claim would not be deceptive if it were
accompanied by clear and prominent qualifying language limiting the
environmental superiority representation to the particular product
attribute or attributes for which it could be substantiated,
provided that no other deceptive implications were created by the
context.
(b) Degradable/biodegradable/photodegradable: It is deceptive to
misrepresent, directly or by implication, that a product or package is
degradable, biodegradable or photodegradable. An unqualified claim that
a product or package is degradable, biodegradable or photodegradable
should be substantiated by competent and reliable scientific evidence
that the entire product or package will completely break down and
return to nature, i.e., decompose into elements found in nature within
a reasonably short period of time after customary disposal. Claims of
degradability, biodegradability or photodegradability should be
qualified to the extent necessary to avoid consumer deception about:
(1) The product or package's ability to degrade in the environment
where it is customarily disposed; and
(2) The rate and extent of degradation.
Example 1: A trash bag is marketed as ``degradable,'' with no
qualification or other disclosure. The marketer relies on soil
burial tests to show that the product will decompose in the presence
of water and oxygen. The trash bags are customarily disposed of in
incineration facilities or at sanitary landfills that are managed in
a way that inhibits degradation by minimizing moisture and oxygen.
Degradation will be irrelevant for those trash bags that are
incinerated and, for those disposed of in landfills, the marketer
does not possess adequate substantiation that the bags will degrade
in a reasonably short period of time in a landfill. The claim is
therefore deceptive.
Example 2: A commercial agricultural plastic mulch film is
advertised as
[[Page 53319]]
``Photodegradable'' and qualified with the phrase, ``Will break down
into small pieces if left uncovered in sunlight.'' The claim is
supported by competent and reliable scientific evidence that the
product will break down in a reasonably short period of time after
being exposed to sunlight and into sufficiently small pieces to
become part of the soil. The qualified claim is not deceptive.
Because the claim is qualified to indicate the limited extent of
breakdown, the advertiser need not meet the elements for an
unqualified photodegradable claim, i.e., that the product will not
only break down, but also will decompose into elements found in
nature.
Example 3: A soap or shampoo product is advertised as
``biodegradable,'' with no qualification or other disclosure. The
manufacturer has competent and reliable scientific evidence
demonstrating that the product, which is customarily disposed of in
sewage systems, will break down and decompose into elements found in
nature in a short period of time. The claim is not deceptive.
Example 4: A plastic six-pack ring carrier is marked with a
small diamond. Many state laws require that plastic six-pack ring
carriers degrade if littered, and several state laws also require
that the carriers be marked with a small diamond symbol to indicate
that they meet performance standards for degradability. The use of
the diamond, by itself, does not constitute a claim of
degradability.15
\15\ The guides' treatment of unqualified degradable claims is
intended to help prevent consumer deception and is not intended to
establish performance standards for laws intended to ensure the
degradability of products when littered.
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(c) * * *
(d) * * *
(e) Recycled content: A recycled content claim may be made only for
materials that have been recovered or otherwise diverted from the solid
waste stream, either during the manufacturing process (pre-consumer),
or after consumer use (post-consumer). To the extent the source of
recycled content includes pre-consumer material, the manufacturer or
advertiser must have substantiation for concluding that the pre-
consumer material would otherwise have entered the solid waste stream.
In asserting a recycled content claim, distinctions may be made between
pre-consumer and post-consumer materials. Where such distinctions are
asserted, any express or implied claim about the specific pre-consumer
or post-consumer content of a product or package must be substantiated.
It is deceptive to misrepresent, directly or by implication, that a
product or package is made of recycled material. Unqualified claims of
recycled content may be made only if the entire product or package,
excluding minor, incidental components, is made from recycled material.
For products or packages that are only partially made of recycled
material, a recycled claim should be adequately qualified to avoid
consumer deception about the amount, by weight, of recycled content in
the finished product or package.
Example 1: A manufacturer routinely collects spilled raw
material and scraps left over from the original manufacturing
process. After a minimal amount of reprocessing, the manufacturer
combines the spills and scraps with virgin material for use in
further production of the same product. A claim that the product
contains recycled material is deceptive since the spills and scraps
to which the claim refers are normally reused by industry within the
original manufacturing process, and would not normally have entered
the waste stream.
Example 2: A manufacturer purchases material from a firm that
collects discarded material from other manufacturers and resells it.
All of the material was diverted from the solid waste stream and is
not normally reused by industry within the original manufacturing
process. The manufacturer includes the weight of this material in
its calculations of the recycled content of its products. A claim of
recycled content based on this calculation is not deceptive because,
absent the purchase and reuse of this material, it would have
entered the waste stream.
Example 3: A greeting card is composed 30% by fiber weight of
paper collected from consumers after use of a paper product, and 20%
by fiber weight of paper that was generated after completion of the
paper-making process, diverted from the solid waste stream, and
otherwise would not normally have been reused in the original
manufacturing process. The marketer of the card may claim either
that the product ``contains 50% recycled fiber,'' or may identify
the specific pre-consumer and/or post-consumer content by stating,
for example, that the product ``contains 50% total recycled fiber,
including 30% post-consumer.''
Example 4: A paperboard package with 20% recycled fiber by
weight is labeled as containing ``20% recycled fiber.'' Some of the
recycled content was composed of material collected from consumers
after use of the original product. The rest was composed of overrun
newspaper stock never sold to customers. The claim is not deceptive.
Example 5: A product in a multi-component package, such as a
paperboard box in a shrink-wrapped plastic cover, indicates that it
has recycled packaging. The paperboard box is made entirely of
recycled material, but the plastic cover is not. The claim is
deceptive since, without qualification, it suggests that both
components are recycled. A claim limited to the paperboard box would
not be deceptive.
Example 6: A package is made from layers of foil, plastic, and
paper laminated together, although the layers are indistinguishable
to consumers. The label claims that ``one of the three layers of
this package is made of recycled plastic.'' The plastic layer is
made entirely of recycled plastic. The claim is not deceptive
provided the recycled plastic layer constitutes a significant
component of the entire package.
Example 7: A paper product is labeled as containing ``100%
recycled fiber.'' The claim is not deceptive if the advertiser can
substantiate the conclusion that 100% by weight of the fiber in the
finished product is recycled.
Example 8: A frozen dinner is marketed in a package composed of
a cardboard box over a plastic tray. The package bears the legend,
``package made from 30% recycled material.'' Each packaging
component amounts to one-half the weight of the total package. The
box is 20% recycled content by weight, while the plastic tray is 40%
recycled content by weight. The claim is not deceptive, since the
average amount of recycled material is 30%.
Example 9: A paper greeting card is labeled as containing 50%
recycled fiber. The seller purchases paper stock from several
sources and the amount of recycled fiber in the stock provided by
each source varies. Because the 50% figure is based on the annual
weighted average of recycled material purchased from the sources
after accounting for fiber loss during the production process, the
claim is permissible.
Example 10: A packaged food product is labeled with a three
chasing arrows symbol without any further explanatory text as to its
meaning. By itself, the symbol is likely to convey that the
packaging is both ``recyclable'' and is made entirely from recycled
material. Unless both messages can be substantiated, the claim
should be qualified as to whether it refers to the package's
recyclability and/or its recycled content. If a ``recyclable claim''
is being made, the label may need to disclose the limited
availability of recycling programs for the package. If a recycled
content claim is being made and the packaging is not made entirely
from recycled material, the label should disclose the percentage of
recycled content.
(f) Source reduction: It is deceptive to misrepresent, directly or
by implication, that a product or package has been reduced or is lower
in weight, volume or toxicity. Source reduction claims should be
qualified to the extent necessary to avoid consumer deception about the
amount of the source reduction and about the basis for any comparison
asserted.
Example 1: An ad claims that solid waste created by disposal of
the advertiser's packaging is ``now 10% less than our previous
package.'' The claim is not deceptive if the advertiser has
substantiation that shows that disposal of the current package
contributes 10% less waste by weight or volume to the solid waste
stream when compared with the immediately preceding version of the
package.
Example 2: An advertiser notes that disposal of its product
generates ``10% less waste.'' The claim is ambiguous. Depending on
contextual factors, it could be a comparison either to the
immediately preceding product or to a competitor's product. The
``10% less waste'' reference is deceptive unless the seller
clarifies which comparison is intended and substantiates that
comparison, or substantiates both possible interpretations of the
claim.
[[Page 53320]]
(g) Refillable: It is deceptive to misrepresent, directly or by
implication, that a package is refillable. An unqualified refillable
claim should not be asserted unless a system is provided for the
collection and return of the package for refill or the later refill of
the package by consumers with product subsequently sold in another
package. A package should not be marketed with an unqualified
refillable claim, if it is up to the consumer to find new ways to
refill the package.
Example 1: A container is labeled ``refillable x times.'' The
manufacturer has the capability to refill returned containers and
can show that the container will withstand being refilled at least x
times. The manufacturer, however, has established no collection
program. The unqualified claim is deceptive because there is no
means for collection and return of the container to the manufacturer
for refill.
Example 2: A bottle of fabric softener states that it is in a
``handy refillable container.'' The manufacturer also sells a large-
sized container that indicates that the consumer is expected to use
it to refill the smaller container. The manufacturer sells the
large-sized container in the same market areas where it sells the
small container. The claim is not deceptive because there is a means
for consumers to refill the smaller container from larger containers
of the same product.
(h) Ozone safe and ozone friendly: It is deceptive to misrepresent,
directly or by implication, that a product is safe for or ``friendly''
to the ozone layer or the atmosphere. For example, a claim that a
product does not harm the ozone layer is deceptive if the product
contains an ozone-depleting substance.
Example 1: A product is labeled ``ozone friendly.'' The claim is
deceptive if the product contains any ozone-depleting substance,
including those substances listed as Class I or Class II chemicals
in Title VI of the Clean Air Act Amendments of 1990, Public Law 101-
549, and others subsequently designated by EPA as ozone-depleting
substances. Chemicals that have been listed or designated as Class I
are chlorofluorocarbons (CFCs), halons, carbon tetrachloride, 1,1,1-
trichloroethane, methyl bromide and hydrobromofluorocarbons (HBFCs).
Chemicals that have been listed as Class II are
hydrochlorofluorocarbons (HCFCs).
Example 2: An aerosol air freshener is labeled ``ozone
friendly.'' Some of the product's ingredients are volatile organic
compounds (VOCs) that may cause smog by contributing to ground-level
ozone formation. The claim is likely to convey to consumers that the
product is safe for the atmosphere as a whole, and is therefore,
deceptive.
Example 3: The seller of an aerosol product makes an unqualified
claim that its product ``Contains no CFCs.'' Although the product
does not contain CFCs, it does contain HCFC-22, another ozone
depleting ingredient. Because the claim ``Contains no CFCs'' may
imply to reasonable consumers that the product does not harm the
ozone layer, the claim is deceptive.
Example 4: A product is labeled ``This product is 95% less
damaging to the ozone layer than past formulations that contained
CFCs.'' The manufacturer has substituted HCFCs for CFC-12, and can
substantiate that this substitution will result in 95% less ozone
depletion. The qualified comparative claim is not likely to be
deceptive.
Sec. 260.8 Environmental assessment.
National Environmental Policy Act. In accordance with Sec. 1.83 of
the FTC's Procedures and Rules of Practice \4\ and Sec. 1501.3 of the
Council on Environmental Quality's regulations for implementing the
procedural provisions of National Environmental Policy Act, 42 U.S.C.
4321 et seq. (1969),\5\ the Commission prepared an environmental
assessment when the guides were issued in July 1992 for purposes of
providing sufficient evidence and analysis to determine whether issuing
the Guides for the Use of Environmental Marketing Claims required
preparation of an environmental impact statement or a finding of no
significant impact. After careful study, the Commission concluded that
issuance of the Guides would not have a significant impact on the
environment and that any such impact ``would be so uncertain that
environmental analysis would be based on speculation.'' \6\ The
Commission concluded that an environmental impact statement was
therefore not required. The Commission based its conclusions on the
findings in the environmental assessment that issuance of the guides
would have no quantifiable environmental impact because the guides are
voluntary in nature, do not preempt inconsistent state laws, are based
on the FTC's deception policy, and, when used in conjunction with the
Commission's policy of case-by-case enforcement, are intended to aid
compliance with section 5(a) of the FTC Act as that Act applies to
environmental marketing claims.
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\4\ 16 CFR 1.83.
\5\ 40 CFR 1501.3.
\6\ 16 CFR 1.83(a).
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The Commission has concluded that modifications to the guides in
this part will not have a significant effect on the environment, for
the same reasons that the issuance of the original guides in 1992 was
deemed not to have a significant effect on the environment. Therefore,
the Commission concludes that an environmental impact statement is not
required in conjunction with the 1996 modifications to the Guides for
the Use of Environmental Marketing Claims.
By direction of the Commission.
Donald S. Clark,
Secretary .
[FR Doc. 96-25938 Filed 10-10-96; 8:45 am]
BILLING CODE 6750-01-P
