Consumer Law Library

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 These rules and guides are historical: most were rescinded or replaced, so do not assume any is in force.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.

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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

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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).

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§ 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