FTC Continues Green Guides Enforcement with Warning Letters

Kelley Drye

The Federal Trade Commission announced this week that it recently sent warning letters to 15 marketers of plastic waste bags advertised as being oxodegradable,” oxo biodegradable,” or biodegradable.” Oxodegradable” and similar terms refer to an additive applied to the bag to enhance biodegradability in the presence of oxygen. The letters, which are not available publicly, express concern that such claims convey to consumers that the bags will break down quicker than standard plastic bags. In fact, the FTC alleges that many such products will not biodegrade any faster than standard plastic bags given the lack of oxygen in many disposal environments. As such, staff is concerned that the products would not meet the standard required for biodegradable” claims per the FTC’s Green Guides, which is total decomposition under normal disposal conditions, i.e., landfill, within in one year. The recipients of the letters have not been disclosed, however the FTC has stated that they had until October 21 to respond.

For those companies that received the letters, close examination of the claims and supporting evidence is paramount. Companies that fail to sufficiently respond to the warning letters create risk of follow up enforcement. Companies making environmental benefit claims that did not receive a warning letter should also take notice, however. The FTC has been actively enforcing its Green Guides this past year – which we have covered here, here, and here – and there is no guarantee that a warning letter will precede initiation of a more formal investigation.