Guides For The Use Of Environmental Marketing Claims
16 CFR Part 260 · Guides · in the Code of Federal Regulations 1993-1995 (3 annual editions)
Scanned CFR pages, OCR text may contain errors; the linked Library of Congress PDF is the authority. Not legal advice; not affiliated with the FTC. These rules and guides are historical: most were rescinded or replaced, so do not assume any is in force.
Latest edition: Library of Congress, 1995 CFR · Earliest edition: 1993 CFR
Text (1995 edition, OCR)
§ 260.1 non-conforming ad appear five months after publication of this Guide. (38 Stat. 717, as amended (15 U.S.C. 41-58)) [43 FR 55749, Nov. 29, 1978) PART 260—GUIDES FOR THE USE OF ENVIRONMENTAL MARKETING CLAIMS Sec. 260.1 260.2 260.3 Statement of purpose. Scope of guides. 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. SOURCE: 57 FR 36363, Aug. 13, 1992, unless otherwise noted. §260.1 Statement of purpose. These guides represent administra- tive interpretations of laws adminis- tered by the Federal Trade Commission for the guidance of the public in con- ducting its affairs in conformity with legal requirements. These guides spe- cifically address the application of sec- tion 5 of the FTC Act (15 U.S.C. 45) to environmental advertising and market- ing practices. They provide the basis for voluntary compliance with such laws by members of industry. Conduct inconsistent with the positions articu- lated in these guides may result in cor- rective 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. §260.2 Scope of Guides. These guides apply to environmental claims included in labeling, advertis- ing, promotional materials and all other forms of marketing, whether as- serted 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 en- vironmental attributes of a product or package in connection with the sales, offering for sale, or marketing of such product or package for personal, family 16 CFR Ch. | (1-1-95 Edition) 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 regula- tions, nor do they have the force and effect of law. The guides themselves do not preempt regulation of other Fed- eral agencies or of State and local bod- ies governing the use of environmental marketing claims. Compliance with Federal, State or local law and regula- tions concerning such claims, however, will not necessarily preclude Commis- sion law enforcement action under sec- tion 5. §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 guid- ance are followed by examples that generally address a single deception concern. A given claim may raise is- sues 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 pre- sented for qualifying a claim. These op- tions are intended to provide a “safe harbor” for marketers who want cer- tainty about how to make environ- mental 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 addi- tion, some of the illustrative disclo- sures may be appropriate for use on la- bels but not in print or broadcast ad- vertisements and vice versa. In some instances, the guides indicate within the example in what context or con- texts a particular type of disclosure should be considered. §260.4 Review procedure. Three years after the date of adop- tion of these guides, the Commission will seek public comment on whether and how the guides need to be modified in light of ensuing developments. Par- ties 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. 106 Federal Trade Commission Following review of such a petition, the Commission will take such action as it deems appropriate. §260.5 Interpretation and _ substan- tiation of environmental marketing claims. Section 5 of the FTC Act makes un- lawful deceptive acts and practices in or affecting commerce. The Commis- sion’s criteria for determining whether an express or implied claim has been made are enunciated in the Commis- sion’s Policy Statement on Deception.1 In addition, any party making an ex- press or implied claim that presents an objective assertion about the environ- mental attribute of a product or pack- age must, at the time the claim is made, possess and rely upon a reason- able 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 com- petent and reliable scientific evidence. For any test, analysis, research, study or other evidence to be ‘‘competent and reliable’ for purposes of these guides, it must be conducted and evaluated in an objective manner by persons quali- fied to do so, using procedures gen- erally accepted in the profession to yield accurate and reliable results. Further guidance on the reasonable basis standard is set forth in the Com- mission’s 1983 Policy Statement on the Advertising Substantiation Doctrine. 49 FR, 30,999 (1984); appended to Thomp- son Medical Co., 104 FTC 648 (1984). These guides, therefore, attempt to preview Commission policy in a rel- atively new context—that of environ- mental claims. § 260.6 General principles. The following general principles apply to all environmental marketing claims, including, but not limited to, those described in §260.7. In addition, §260.7 contains specific guidance appli- cable to certain environmental mar- 1 Cliffdale Associates, Inc., 103 FTC 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’’). § 260.6 keting 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 qualifica- tions or disclosures such as those de- scribed in these guides should be suffi- ciently clear and prominent to prevent deception. Clarity of language, relative type size and proximity to the claim being qualified, and an absence of con- trary claims that could undercut effec- tiveness, 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 packag- ing. 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 prin- ciple. For example, if an unqualified “recyclable” claim is made and the presence of the incidental component significantly limits the ability to recy- cle the product, then the claim would be deceptive. EXAMPLE 1: A box of aluminum foil is la- beled with the claim “recyclable,” without further elaboration. Unless the type of prod- uct, surrounding language, or other context of the phrase establishes whether the claim refers to the foil or the box, the claim is de- ceptive if any part of either the box or the foil, other than minor, incidental compo- nents, 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, inci- dental 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 At- tribute. An environmental] marketing claim should not be presented in a 107 § 260.7 manner that overstates the environ- mental] attribute or benefit, expressly or by implication. Marketers should avoid implications of significant envi- ronmental 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 mate- rial to 3 percent recycled material. Although the claim is technically true, it is likely to convey the false impression that the adver- tiser has increased significantly the use of recycled material. EXAMPLE 2: A trash bag is labeled ‘‘recycla- ble” without qualification. Because trash bags will ordinarily not be separated out from other trash at the landfill or inciner- ator 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 en- vironmental! 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 con- veyed to consumers. The claim is not decep- tive and does not need to be qualified to indi- cate the limited reuse of the sack. (d) Comparative Claims. Environ- mental marketing claims that include a comparative statement should be pre- sented 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 ambig- uous. Depending on contextual factors, it could be a comparison either to the advertis- er’s immediately preceding product or to a competitor’s product. The advertiser should clarify the claim to make the basis for com- parison clear, for example, by saying ‘20% more recycled content than our previous package.” Otherwise, the advertiser should be prepared to substantiate whatever com- parison 1s 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 per- centage of weight, than any other on the market, although it is still well under 100% 16 CFR Ch. I (1-1-95 Edition) recycled. Provided the recycled content and the comparative difference between the prod- uct 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 advertis- er’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 com- paring the relative solid waste contributions of the two packages. The advertiser should be able to substantiate that the comparison remains accurate. $260.7 Environmental claims. Guidance about the use of environ- mental marketing claims is set forth below. Each guide is followed by sev- eral 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 gen- eral principles set forth in §260.6 should also be followed.2 (a) Generali Environmental Benefit Claims. It is deceptive to misrepresent, directly or by implication, that a prod- uct or package offers a general envi- ronmental 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 ex- press and material, implied claim that the general assertion conveys to rea- sonable consumers about an objective quality, feature or attribute of a prod- uct 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 be- marketing 2These guides do not address claims based on a “lifecycle” theory of environmental] benefit. Such analyses are still in their in- fancy and thus the Commission lacks suffi- cient information on which to base guidance at this time. 108 Federal Trade Commission lieve 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 par- ticular 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 sig- nificant quantities of other harmful sub- stances. Since consumers are likely to inter- pret the ‘‘Environmentally Friendly” claim, in combination with the textual explanation, to mean that no significant harmful sub- stances are currently released to the envi- ronment, the “Environmentally Friendly” claim would be deceptive. EXAMPLE 3: A pump spray product is la- beled ‘“‘environmentally safe.’? Most of the product’s active ingredients consist of vola- tile organic compounds (VOCs) that may cause smog by contributing to ground-level ozone formation. The claim is deceptive be- cause, absent further qualification, it is like- ly to convey to consumers that use of the product will not result in air pollution or other harm to the environment. (b) Degradable/Biodegradable/ Photodegradable. It is deceptive to mis- represent, directly or by implication, that a product or package is degrad- able, biodegradable or photodegradable. An unqualified claim that a product or package is degrad- able, 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 reasonable short period of time after customary disposal. Claims of degradability, biodegradability or photodegradability should be qualified to the extent nec- essary 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 degrada- tion. § 260.7 EXAMPLE 1: A trash bag is marketed as “degradable,” which no qualification or other disclosure. The marketer relies on soil burial tests to show that the product will de- compose in the presence of water and oxy- gen. The trash bags are customarily disposed of in incineration facilities or at sanitary landfills that are managed in a way that in- hibits 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 substan- tiation that the bags will degrade in a rea- sonably short period of time in a landfill. The claim is therefore deceptive. EXAMPLE 2: A commercial agricultural plastic mulch film is advertised as “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 sci- entific evidence that the product will break down in a reasonably short period of time after being exposed to sunlight and into suf- ficiently small pieces to become part of the soil. The qualified claim is not deceptive. Be- cause the claim is qualified to indicate the limited extent of breakdown, the advertiser need not meet the elements for an unquali- fied photodegradable claim, i.e., that the product will not only break down, but also will decompose into elements found in na- ture. EXAMPLE 3: A soap or shampoo product is advertised as ‘‘biodegradeable,’’ with no qualification or other disclosure. The manu- facturer has competent and reliable sci- entific evidence demonstrating that the product, which is customarily disposed of in sewage systems, will break down and decom- pose into elements found in nature in a short period of time. The claim is not deceptive. (ec) Compostable. It is deceptive to misrepresent, directly or by implica- tion, that a product or package is compostable. An unqualified claim that a product or package is compostable should be substantiated by competent and reliable scientific evidence that all the materials in the product or package will break down into, or otherwise become part of, usa- ble compost (e.g., soil-conditioning ma- terial, mulch) in a safe and timely manner in an appropriate composting program or facility, or in a home com- post pile or device. Claims of compostability should be qualified to the extent necessary to avoid consumer deception. An unqualified claim may be deceptive. (1) If municipal composting facilities are not available to a substantial ma- 109 § 260.7 jority of consumers or communities where the package is sold; (2) If the claim misieads consumers about the environmental benefit pro- vided when the product is disposed of in a landfill; or (3) If consumers misunderstand the claim to mean that the package can be safely composted in their home com- post pile or device, when in fact it can- not. EXAMPLE 1: A manufacturer indicates that its unbleached coffee filter is compostable. The unqualified claim is not deceptive pro- vided the manufacturer can substantiate that the filter can be converted safely to us- able compost in a timely manner in a home compost pile or device, as well as in an ap- propriate composting program or facility. EXAMPLE 2: A lawn and leaf bag is labeled as “Compostable in California Municipal Yard Waste Composting Facilities.” The bag contains toxic ingredients that are released into the compost material as the bag breaks down. The claim is deceptive if the presence of these toxic ingredients prevents the com- post from being usable. EXAMPLE 3: A manufacturer indicates that its paper plate is suitable for home composting. If the manufacturer possesses substantiation for claiming that the paper plate can be converted safely to usable com- post in a home compost pile or device, this claim is not deceptive even if no municipal composting facilities exist. EXAMPLE 4: A manufacturer makes an un- qualified claim that its package is compostable. Although municipal composting facilities exist where the product is sold, the package will not break down into usable compost in a home compost pile or device. To avoid deception, the manufacturer should disclose that the package is not suit- able for home composting. EXAMPLE §: A nationally marketed lawn and leaf bag is labeled ‘‘compostable.’’ Also printed on the bag is a disclosure that the bag is not designed for use in home compost piles. The bags are in fact composted in mu- nicipal yard waste composting programs in many communities around the country, but such programs are not available to a sub- stantial majority of consumers where the bag is sold. The claim is deceptive since rea- sonable consumers living in areas not served by municipal yard waste programs may un- derstand the reference to mean that composting facilities accepting the bags are available in their area. To avoid deception, the claim should be qualified to indicate the limited availability of such programs, for ex- ample, by stating, ‘“‘Appropriate facilities may not exist in your area.’”’ Other examples of adequate qualification of the claim in- clude providing the approximate percentage 16 CFR Ch. | (1-1-95 Edition) of communities or the population for which such programs are available. EXAMPLE 6: A manufacturer sells a dispos- able diaper that bears the legend, “‘This dia- per can be composted where municipal solid waste composting facilities exist. There are currently [X number of] municipa] solid waste composting facilities across the coun- try.” The claim is not deceptive, assuming that composting facilities are available as claimed and the manufacturer can substan- tiate that the diaper can be converted safely to usable compost in municipal solid waste composting facilities. EXAMPLE 7: A manufacturer markets yard waste bags only to consumers residing in particular geographic areas served by county yard waste composting programs. The bags meet specifications for these programs and are labeled, “Compostable Yard Waste Bag for County Composting Programs.” The claim is not deceptive. Because the bags are compostable where they are sold, no quali- fication is required to indicate the limited availability of composting facilities. (d) Recyclable. It is deceptive to mis- represent, directly or by implication, that a product or package is recycla- ble. A product or package should not be marketed as recyclable unless it can be collected, separated or otherwise re- covered from the solid waste stream for use in the form of raw materials, in the manufacture or assembly of a new package or product. Unqualified claims of recyclability for a product or pack- age may be made if the entire product or package, excluding minor incidental components, is recyclable. For prod- ucts or packages that are made of both recyclable and non-recyclable compo- nents, the recyclable claim should be adequately qualified to avoid consumer deception about which portions or com- ponents of the product or package are recyclable. Claims of recyclability should be qualified to the extent nec- essary to avoid consumer deception about any limited availability of recy- cling programs and collection sites. If an incidental component significantly limits the ability to recycle the prod- uct, the claim would be deceptive. A product or package that is made from recyclable material, but, because of its shape, size or some other attribute, is not accepted in recycling programs for such material, should not be marketed as recyclable. EXAMPLE 1: A packaged product is labeled with an unqualified claim, ‘recyclable.’ It is unclear from the type of product and other 110 Federal Trade Commission context whether the claim refers to the prod- uct or its package. The unqualified claim is likely to convey to reasonable consumers that all of both the product and its packag- ing that remain after normal use of the prod- uct, exempt for minor, incidental compo- nents, can be recycled. Unless each such message can be substantiated, the claim should be qualified to indicate what portions are recyclable. EXAMPLE 2: A plastic package is labeled on the bottom with the Society of the Plastics Industry (SPI) code, consisting of a design of arrows in a triangular shape containing a number and abbreviation identifying the component plastic resin. Without more, the use of the SPI symbol (or similar industry codes) on the bottom of the package, or ina similarly inconspicuous location, does. not constitute a claim of recyclability. EXAMPLE 3: A container can be burned in incinerator facilities to produce heat and power. It cannot, however, be recycled into new products or packaging. Any claim that the container is recyclable would be decep- tive. EXAMPLE 4: A nationally marketed bottle bears the unqualified statement that it is ‘“recyclable.”’ Collection sites for recycling the material in question are not available to a substantial majority of consumers or com- munities, although collection sites are es- tablished in a significant percentage of com- munities or available to a significant per- centage of the population. The unqualified claim is deceptive since, unless evidence shows otherwise, reasonable consumers liv- ing in communities not served by programs may conclude that recycling programs for the material are available in their area. To avoid deception, the claim should be quali- fied to indicate the limited availability of programs, for example, by stating, ‘‘Check to see if recycling facilities exist in your area.” Other examples of adequate qualifications of the claim include providing the approximate percentage of communities or the population to whom programs are available. EXAMPLE 5: A soda bottle is marketed na- tionally and labeled, ‘‘“Recyclable where fa- cilities exist.’’ Recycling programs for mate- rial of this type and size are available in a significant percentage of communities or to a significant percentage of the population, but are not available to a substantial major- ity of consumers. The claim is deceptive since, unless evidence shows otherwise, rea- sonable consumers living in communities not served by programs may understand this phrase to mean that programs are available in their area. To avoid deception, the claim should be further qualified to indicate the limited availability of programs, for exam- ple, by using any of the approaches set forth in Example 4 above. . EXAMPLE 6: A plastic detergent bottle i marketed as follows: “Recyclable in the few § 260.7 communities with facilities for colored HDPE bottles.”’ Collection sites for recycling the container have been established in a half-dozen major metropolitan areas. This disclosure illustrates one approach to quali- fying a claim adequately to prevent decep- tion about the limited availability of recy- cling programs where collection facilities are not established in a significant percent- age of communities or available to a signifi- cant percentage of the population. Other ex- amples of adequate qualification of the claim include providing the number of commu- nities with programs, or the percentage of communities or the population to which pro- grams are available. EXAMPLE 7: A label claims that the pack- age “includes some recyclable material.” The package is composed of four layers of different materials, bonded together. One of the layers is made from the recyclable mate- rial, but the others are not. While programs for recycling this type of material are avail- able to a substantial majority of consumers, only a few of those programs have the capa- bility to separate out the recyclable layer. Even though it is technologically possible to separate the layers, the claim is not ade- quately qualified to avoid consumer decep- tion. An appropriately qualified claim would be, “includes material recyclable in the few communities that collect multi-layer prod- ucts.’’ Other examples of adequate qualifica- tion of the claim include providing the num- ber of communities with programs, or the percentage of communities or the population to which programs are available. EXAMPLE 8: A product is marketed as hav- ing a “recyclable” container. The product is distributed and advertised only in Missouri. Collection sites for recycling the container are available to a substantial majority of Missouri residents, but are not yet available nationally. Because programs are generally available where the product is marketed, the unqualified claim does not deceive consum- ers about the limited availability of recy- cling programs. (e) Recycled Content. A recycled con- tent claim may be made only for mate- rials that have been recovered or other- wise diverted from the solid waste stream, either during the manufactur- ing 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 other- wise have entered the solid waste stream. In asserting a recycled content claim, distinctions may be made be- tween pre-consumer and post-consumer lil § 260.7 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 pack- age is made of recycled material. Un- qualified claims of recycled content may be made only if the entire product or package, excluding minor, inciden- tal components, is made from recycled material. For products or packages that are only partially made of recy- cled 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 col- lects spilled raw material and scraps from trimming finished products. 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 con- tains 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 ma- terial from a firm that collects discarded material from other manufacturers and re- sells it. All of the material was diverted from the solid waste stream and is not normally reused by industry within the original manu- facturing process. The manufacturer in- cludes the weight of this material in its cal- culations of the recycled content of its prod- ucts. A claim of recycled content based on this calculation is not deceptive because, ab- sent the purchase and reuse of this material, it would have entered the waste stream. EXAMPLE 3: A greeting card is composed 30% by weight of paper collected from con- sumers after use of a paper product, and 20% by weight of paper that was generated after completion of the paper-making process, di- verted from the solid waste stream, and oth- erwise 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 mate- rial,” or may identify the specific pre- consumer and/or post-consumer content by stating, for example, that the product ‘‘con- tains 50% total recycled material, 30% of which is post-consumer material.” EXAMPLE 4: A package with 20% recycled content by weight is labeled as containing “20% recycled paper.” Some of the recycled content was composed of material collected from consumers after use of the original 16 CFR Ch. | (1-1-95 Edition) 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-compo- nent 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 de- ceptive since, without qualification, it sug- gests 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 to- gether, although the layers are indistin- guishable 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 recy- cled 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 sub- stantiate the conclusion that 100% by weight of the fiber in the finished product is recy- cled. 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 la- beled as containing 50% by weight recycled content. The seller purchases paper stock from several sources and the amount of recy- cled material in the stock provided by each source varies. Because the 50% figure is based on the annual weighted average of re- cycled material purchased from the sources after accounting for fiber loss during the production process, the claim is permissible. (f) Source Reduction. It is deceptive to misrepresent, directly or by implica- tion, that a product or package has been reduced or is lower in weight, vol- ume or toxicity. Source reduction claims should be qualified to the ex- tent necessary to avoid consumer de- ception 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 pack- aging is ‘‘now 10% less than our previous package.” The claim is not deceptive if the advertiser has substantiation that shows 112 Federal Trade Commission that disposal of the current package contrib- utes 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 dis- posal of its product generates ‘10% less waste.’’ The claim is ambiguous. Depending on contextual factors, it could be a compari- son either to the immediately preceding product or to a competitor’s product. The “10% less waste’’ reference is deceptive un- less the seller clarifies which comparison is intended and substantiates that comparison, or substantiates both possible interpreta- tions of the claim. (g) Refillable. It is deceptive to mis- represent, directly or by implication, that a package is refillable. An un- qualified refillable claim should not be asserted unless a system is provided for: (1) The collection and return of the package for refill; or (2) 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 ‘“‘refill- able x times.’’ The manufacturer has the ca- pability 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 pro- gram. The unqualified claim is deceptive be- cause there is no means for collection and re- turn of the container to the manufacturer for refill. EXAMPLE 2: A bottle of fabric softener states that it is in a “handy refillable con- tainer.’’ 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. A claim that a product does not harm the ozone layer is deceptive if the product contains an ozone-depleting substance. § 260.8 EXAMPLE 1: A product is labeled ‘‘ozone friendly.’’ The claim is deceptive if the prod- uct 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 No. 101-549, or others subsequently designated by EPA as ozone-depleting substances. Class I chemicals currently listed in title VI are chlorofluorocarbons (CFCs), halons, carbon tetrachloride and 1,1,1-trichloroethane. Class II chemicals currently listed in title VI are hydrochlorofluocrocarbons (HCFCs). EXAMPLE 2: The seller of an aerosol prod- uct makes an unqualified claim that its product ‘‘Contains no CFCs.’’ Although the product does not contain CFCs, it does con- tain HCFC-22, another ozone depleting ingre- dient. 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 3: 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. §260.8 Environmental assessment. National Environmental Policy Act. In accordance with §1.83 of the FTC’s Procedures and Rules of Practice? and §1501.38 of the Council on Environ- mental Quality’s regulations for imple- menting the procedural provisions of National Environmental Policy Act, 42 U.S.C. 4821 et seq. (1969),4 the Commis- sion has prepared an environmental as- sessment for purposes of providing suf- ficient evidence and analysis to deter- mine whether issuing the Guides for the Use of Environmental Marketing Claims requires preparation of an envi- ronmental impact statement or a find- ing of no significant impact. After careful study, the Commission con- cludes that issuance of the Guides will not have a significant impact on the environment and that any such impact “would be so uncertain that environ- mental analysis would be based on speculation.’”5 An environmental im- pact statement is therefore not re- quired. This conclusion is based on the findings in the environmental assess- ment that issuance of the guides would 316 CFR 1.83 (revised as of January 1, 1991). 440 CFR 1501.3 (1991). 516 CFR 1.83(a). 113 § 260.8 have no quantifiable environmental impact because the guides are vol- untary in nature, do not preempt in- consistent 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 sec- tion 5(a) of the FTC Act as that Act ap- plies to environmental marketing claims. Furthermore, the guides are neither motivated by nor intended to influence environmental policy deci- sions. The guides also do not impose standards on manufacturing or waste disposal methods. Consumer behavior 16 CFR Ch. | (1-1-95 Edition) as a result of the issuance of guides may change but any such change can- not be quantified, or even reasonably estimated, since those decisions would be influenced by many other variables, in addition to advertising claims. In- dustry response to the guides, beyond modification of environmental market- ing claims, is also impossible to predict or quantify. The alternatives to Com- mission guides described in the envi- ronmental assessment, both within and without the Commission, would also have, at most, only an indirect and highly speculative impact on the envi- ronment. 114