FTC Plans Green Packaging Workshop

The Federal Trade Commission (FTC) announced on Monday, February 25, that it will host a one-day public workshop on April 30, 2008, entitled "The Green Guides and Packaging." The workshop will "focus in depth on an area in which a wide range of green claims are prevalent." The workshop aims to examine recent and on-going developments with green packaging claims, consumer perception of such claims, and substantiation issues, and is part of the FTC’s regulatory review of its Guides for the Use of Environmental Marketing Claims ("Green Guides").

The FTC previously announced this review and solicited comments on the Green Guides in a November 26, 2007, Federal Register notice. It also solicited comments on carbon offsets and renewable energy certificates ("RECs") as part of this regulatory review, holding its first workshop on those topics in January 2008. In response to its request, over 70 comments were submitted to the FTC on the Green Guides. Most commenters supported the review, suggested reviewing claims, and advocated assessing new claims as part of the review. Many commenters urged the FTC to increase enforcement and education initiatives in this dynamic and changing area.

The packaging workshop will be an opportunity to discuss specific environmental claims the Green Guides already address in the packaging context (such as "recyclable," "degradable" or biodegradable," and "compostable"), changes in technology or other factors that should be considered in the Green Guides, and new "green claims (e.g., "sustainable" and renewable") which the Green Guides do not address. The FTC is also interested in exploring the consumer perception and substantiation issues related to "green" packaging claims. Specifically, the FTC is requesting comments relating to, among other topics:

     • Whether consumer perceptions for claims currently covered in the Green Guides have changed since the Green Guides were revised in 1998, input on whether current recyclability disclosures adequately apprise consumers of the criteria for the recycling of packaging, the appropriate methods of recycling, and/or the availability of appropriate recycling facilities;

     • Comments on consumer perceptions with respect to degradability and compostability claims, and whether and to what extent the Green Guides should provide more specificity regarding the time frame for composting;

     • Issues related to bio-based packaging, including what consumers understand the term "bio-based" to mean and what evidence constitutes a reasonable basis for a claim, such as "commercially compostable" on a bio-based" package; and

     • The use of third-party certifications and seals, labels, or symbols on packaging and consumers’ perceptions of the meaning, as well as the specific criteria third-party certifiers employ to substantiate such claims.

Organizations commenting to date offered a range of other suggestions. Several asked the FTC to consider claims such as "free" or "no." Companies, primarily in the paper industry, suggested eliminating the distinction between "pre" and "post" consumer content. Suggestions were made to revisit some of the qualifiers provided in the Guides. Suggesting a need for harmonization, some commenters noted differences between the FTC Guides and ISO 14021 with reference to the scope of recycling necessary for advertisers to make an unqualified "recyclable" claim (the Guides apply a "substantial majority" test while ISO 14021 uses a "reasonable proportion" test).

Comments are due no later than April 11, 2008, for those interested in influencing the workshop; comments will be accepted until May 19, 2008.

For more information on environmental marketing claims, please contact Sheila A. Millar at 202-434-4143, (or at millar@khlaw.com); Peter de la Cruz at 202-434-4141 (or at delacruz@khlaw.com); J.C. Walker at 202-434-4181 (or at walker@khlaw.com); Tracy Marshall at 202-434-4234 (or at marshall@khlaw.com); or Jason Yearout at 202-434-4108 (or at yearout@khlaw.com).

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