FTC Targets Deceptive Biodegradable Plastics Claims

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The Federal Trade Commission Tuesday targeted deceptive biodegradable plastics claims for the first time, assessing a $450,000 civil penalty against one company and complaints and proposed consent orders against four others that marketed plastics with allegedly false and unsupported claims that their products were biodegradable.

From the FTC:

All of these cases are part of the FTC’s program to ensure compliance with the agency’s recently revised Green Guides. The Commission publishes the Guides to help businesses market their products accurately, providing guidance as to what constitutes deceptive and non-deceptive environmental claims.

“It’s no secret that consumers want products that are environmentally friendly, and that companies are trying to meet that need,” said Jessica Rich, Director of the Federal Trade Commission’s Bureau of Consumer Protection. “But companies that don’t have evidence to support the environmental claims they make about their products erode consumer confidence and undermine those companies that are playing by the rules.”

Each of the FTC’s plastics matters and, where appropriate, the proposed consent order, and the paper products civil penalty settlement are detailed below.

ECM Biofilms, Inc. is based in Ohio and markets its additives (which allegedly make plastic products biodegradable) under the trade name MasterBatch Pellets. It advertises its additives on its website and through marketing materials, such as fliers and brochures that are available to distributors and manufacturers that incorporate ECM additives into their products. According to the complaint, ECM also issues its own “Certificates of Biodegradability of Plastic Products,” which ECM allegedly uses to convince its customers and end-use consumers that its additive makes plastic products biodegradable.

ECM allegedly claimed, for example, that “plastic products made with [its] additives will break down in approximately nine months to five years in nearly all landfills or wherever else they may end up.” The complaint alleges that these purportedly biodegradable plastics do not in fact biodegrade within a reasonably short period of time after disposal in a landfill. Moreover, the complaint alleges that ECM has no substantiation to support its claims that its additive makes plastic biodegradable.

The Commission complaint charges ECM with violating the FTC Act by misrepresenting that: 1) ECM plastics (plastics made with ECM additives) are biodegradable and will completely break down within a reasonably short period of time after customary disposal; 2) ECM plastics are biodegradable in a landfill; 3) ECM plastics are biodegradable in a stated qualified timeframe; and 4) that various scientific tests prove ECM’s biodegradability claims. Finally, the complaint charges ECM with providing its customer and independent distributors – through the distribution of its promotional materials – with the means to deceive consumers. The notice order attached to the complaint would, among other things, prohibit ECM from engaging in each violation alleged in the complaint.

The FTC’s complaints against the following companies charge them with misrepresenting that plastics treated with additives are biodegradable, biodegradable in a landfill, biodegradable in a certain timeframe, or shown to be biodegradable in a landfill or that various scientific tests prove their biodegradability claims. The FTC also alleges that the companies lacked reliable scientific tests to back up these claims.

American Plastic Manufacturing is based in Seattle, Washington, and was an ECM customer until at least December 2012. The FTC alleges that APM advertised its plastic shopping bags on its website as biodegradable, and sold them to distributors nationwide. APM’s marketing materials claimed that its products were biodegradable based on the use of the additives sold by ECM.

CHAMP, located in Marlborough, Massachusetts, also was an ECM customer, and advertised on its website that its plastic golf tees were biodegradable. CHAMP sold the tees both online and in brick and mortar stores throughout the United States. The company’s marketing materials claimed that the ECM additive made its products biodegradable.

Clear Choice Housewares, Inc. based in Leominster, Massachusetts, was a customer of an additive manufacturer called Bio-Tec Environmental. Clear Choice sold what it claims are biodegradable, reusable plastic food storage containers on its website, as well as in retail stores nationwide. Clear Choice’s marketing materials claimed its products were biodegradable based on the application of a Bio-Tec product called Eco Pure. The FTC alleges that Clear Choice made false and unsubstantiated claims that Eco Pure made its products “quickly biodegradable in landfills.”

Carnie Cap, Inc., based in East Moline, Illinois, incorporated Eco-One, an additive manufactured and marketed by Ecologic, into its plastic rebar cap covers. Carnie Cap advertised the caps on its website and sold them through various distributors nationwide. It claimed, with no qualification, that the Eco-One product makes it plastic rebar cap covers “100 % biodegradable.”

The proposed consent orders settling the FTC’s complaints are essentially the same. They prohibit the four companies from making biodegradability claims unless the representations are true and supported by competent and reliable scientific evidence. Consistent with the Green Guides, the companies must have evidence that the entire plastic product will completely decompose into elements found in nature within one year after customary disposal (defined as disposal in a landfill, incinerator, or recycling facility) before making any unqualified biodegradable claim.

For qualified claims, the companies must state the time required for compete biodegradation in a landfill or the time to degrade in a disposal environment near where consumers who buy the product live. Alternatively, the companies may state the rate and extent of degradation in a landfill or other disposal facility accompanied by an additional disclosure that the stated rate and extent do not mean that the product will continue to decompose.

The proposed consent orders also make it clear that ASTM D5511 (a test standard commonly used in the additive industry) cannot substantiate unqualified biodegradable claims or claims beyond the results and parameters of the test, and that any testing protocol used to substantiate degradable claims must simulate the conditions found in the stated disposal environment.

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