A recent decision from the Advertising Standards Authority in the United Kingdom held that a "100% recycled" claim that appeared in advertising for bottled ice tea was misleading, when the bottle cap and label were not made of recycled material -- even though the ad had a disclaimer which explained that fact. While it's always a challenge to defend an ad's meaning based on the disclaimers, the issue in this case that is more significant is the fact that the ASA had concerns about the claim itself. Even though the advertiser argued that consumers wouldn't normally expect the bottle cap and label to be made from recycled material, the ASA concluded -- without really addressing this issue -- that "the overall impression of the ad was that all components of the bottle were made entirely from recycled materials." (For a more detailed discussion about this decision, check out my friend Geraint Lloyd-Taylor's post on the Lewis Silkin "AdLaw Insights" blog.)
But what about the advertiser's argument? Would consumers reasonably expect that an advertising claim that a product is made of recycled material means that all aspects of the product, even incidental parts, were, in fact, made of recycled content? The Federal Trade Commission doesn't think so -- at least it didn't think that when it issued its revised Guides for the Use of Environmental Marketing Claims (the "Green Guides") back in 2012.
The Green Guides aren't laws or regulations, and they're not independently enforceable. The Green Guides simply state the FTC's position about the types of advertising claims that the FTC believes would violate Section 5 of the FTC Act, which prohibits "unfair or deceptive acts or practices."
When the FTC last issued the Green Guides, the FTC explained that, when making general environmental marketing claims, marketers didn't need to worry about minor components of a product. The FTC said, "In general, if the environmental attribute applies to all but minor, incidental components of a product or package, the marketer need not qualify the claim to identify that fact."
In fact, the FTC even discussed whether marketers needed to worry about bottle caps when making "recycled" claims. The FTC explained, "A soft drink bottle is labeled 'recycled.' The bottle is made entirely from recycled materials, but the bottle cap is not. Because the bottle cap is a minor, incidental component of the package, the claim is not deceptive." While the FTC doesn't address whether the label on the bottle is also an incidental component that doesn't need to be taken into account when making a "recycled" claim, it's clear that the FTC believes something different than the UK's ASA about what "recycled" content claims mean. Or does it?
Late last year, the FTC said that it is planning a review of the Green Guides for 2022. There's no telling, however, whether today's FTC, thinking about the same issues that were considered more than a decade ago (when Barack Obama was President and the Olympics had just concluded in London), will come out the same way. It's a great understatement to say that has a lot has happened since then, but what we don't know is whether the FTC believes, with all of the changes in environmental marketing claims over the past decade, that consumers' understanding of those claims have changed as well. With companies placing increasing emphasis on protecting the earth by making more sustainable products, and with companies wanting to promote the ways in which they've improved the environmental attributes of their products, the industry is going to be watching the FTC closely to see whether updates to the next version of the Green Guides will just be recycled -- or whether we're going to see a more restrictive approach (like we're seeing in the UK).
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