February 26, 2015

FTC Warns Manufacturers of "Biodegradable" Dog Waste Bags: Your Labels Stink

Seller Beware: Consumer Protection Insights for Industry

As our readers know, back in 2012 the FTC issued revised "Green Guides". These Green Guides were designed to clarify when the FTC will consider environmental attribute claims as to consumer products deceptive. Almost two and a half years later, the FTC is maintaining its enforcement pace, recently sending letters to 20 dog waste bags manufacturers warning that their environmental claims may be deceptive.

The FTC sent letters to these manufacturers, in part, because of their unqualified biodegradable claims. Under the revised Green Guides "[i]t is deceptive to make an unqualified biodegradable claim for items entering the solid waste stream if the items do not completely decompose within one year after customary disposal." And moreover, "[u]nqualified biodegradable claims for items that are customarily disposed in landfills, incinerators, and recycling facilities are deceptive." And therein lies the problem for marketers of dog waste bags. According to the FTC, most waste bags end up in landfills where "no plastic biodegrades in anywhere near close to one year, if it biodegrades at all."

The FTC also raised concerns about the manufacturers' unqualified compostable claims. The revised Green Guides specify that compostable claims should be qualified if the item cannot be composted safely "in a home compost pile or device" and that compostable claims must be further qualified if the necessary municipal or institutional composting facilities are not available to a "substantial majority of consumers or communities where the item is sold." According to the FTC, "dog waste is generally not safe to compost at home, and very few facilities accept this waste."

Manufacturers of dog waste bags can take proactive measures in preparation for future FTC action. In particular, under the rules, if marketers of dog waste bags wish to maintain unqualified biodegradable claims they will need "competent and reliable scientific evidence" that their products will completely biodegrade "within a reasonably short period of time after customary disposal." For compostable claims, marketers will need "competent and reliable scientific evidence" that the entire item will become usable compost in a "safe and timely manner" after being placed in an appropriate compost facility or home compost pile.

The FTC did not announce the names of the manufacturers targeted by these letters, but advised that all companies should review their marketing materials for potentially deceptive environmental claims. The FTC also noted that marketers who did not receive a warning letter "should not assume that their claims are fine."

Although these warning letters were targeted to specific products, companies making biodegradable and compostable claims should take this opportunity to review those claims in light of this development. As the Green Guides caution, it is very difficult to substantiate a biodegradable claim for products that are normally disposed of in landfills. Companies should also carefully examine claims for products that are used in a way that would make them unacceptable for composting, even if the product itself may be compostable. For more information, you can find an in depth guide to decomposable and compostable claims on our blog.

© Arnold & Porter Kaye Scholer LLP 2015 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

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