PACKAGING By George G. Misko

FTC’s way of putting the industry on Global Regulatory notice as to what it intends to prosecute as an unfair or deceptive act or practice. However, the Green Guides are not laws Considerations for Green or regulations, and do not pre-empt state or local laws on the subject. The Green Guides apply to all forms Packaging of environmental marketing, including labeling, advertising and promotional materials. Besides general environmen- tal claims, the Green Guides address What companies need carbon offsets, certifications and seals of approval, compostable, degrad- to know to comply with able, ozone-safe and ozone-friendly, recyclable, recycled content, refillable, packaging guidelines renewable energy, renewable materials and source reduction. Additionally, the guides address nontoxic and “free-of” claims that can be relevant food safety claims as well. The final guides do not he global market for green packaging is grow- address organic, sustainable, natural or ing rapidly as consumers, retailers and both bio-based claims. More details on specif- food and consumer product companies seek ic guidelines impacting food packaging to develop products for which they can make are provided below. claims of being “environmentally friendly” General Claims: General environmen- Tor “green.” This growth has prompted several private tal benefit claims should be qualified by organizations to develop standards for green packag- clear and prominent language, limited ing and has also resulted in new or updated regulations to the specific benefit and should not and guidelines that impact the development of green include any deceptive implications. packaging materials or claims made for them. The legal Carbon Offsets: FTC offers limited landscape is such that to avoid allegations of unfair or guidance on these claims, noting that deceptive practices, companies selling and marketing consumer perception of carbon offset products as green must become familiar with applicable and similar claims is still evolving. Use regulations and standards. of appropriate accounting methods to avoid “double-counting,” and use U.S. FTC Labeling Guidelines of qualifiers if the carbon reductions The principle guidance governing the legality of will not occur for at least 2 years are “green” claims in the U.S. is the Federal Trade Commis- required. In addition, claims may not be sion’s (FTC) “Guides for the Use of Environmental Mar- made if the reductions are required by keting Claims” (or “Green Guides,” available at www.ftc. law. gov/os/2012/10/greenguides.pdf [16 CFR Section 260]). Certifications and Seals of Approval: The most recent revision of the Green Guides, which FTC suggests that it will consider it de- was published in October 2012, was the culmination of ceptive to misrepresent that a package a multiyear review process. While these guides are not has been endorsed or certified by an regulations as such, they illustrate how FTC evaluates independent third party, or to use an an environmental claim to determine whether it may environmental certification or seal with- constitute an unfair or deceptive act and therefore be out clearly stating the basis for the cer- prohibited under Section 5 of the Federal Trade Com- tification. A certification or seal should mission Act (FTC Act). Thus, in a sense, the guides are contain clear and prominent language

R e p r i n t e d f r o m F o o d S a f et y M ag a z i n e , A p r i l /M ay 2013, w i t h p e r m i ss i o n o f t h e p u b l i s h e rs . © 2013 by T h e T a r g et G r o u p • w w w . f o o d s a f et y m ag a z i n e . co m PACKAGING to convey that it covers only specific has not been intentionally added. “please recycle” and “check to see” dis- and limited benefits, and marketers What constitutes a “trace amount” closures without additional information must have substantiation for all claims depends on the substance at issue, are not adequate to qualify a communicated by third-party certifica- and requires a case-by-case analysis. claim where facilities are not available tions. A “material connection” does For example, in its publication “The to a substantial majority of consumers. not automatically include membership Green Guides: Statement of Basis and Recycled Content: Both pre- and post- in industry trade associations offering Purpose” (available at www.ftc.gov/os/ consumer recovered materials qualify as certifications, so long as an independent fedreg/2012/10/greenguidesstatement. recycled content, but the materials must certifier administers the trade associa- pdf), FTC suggests that consumers be diverted from the waste stream. A re- tion certification pro- may want to know if cycled content claim must be qualified gram by objectively a product contains if less than 100 percent of a package is applying a voluntary “...the guides address a trace amount of a made with recyclable content. For ex- consensus standard. substance like mer- ample, a package made from laminated Compostable: A nontoxic and cury, which is toxic layers of foil, plastic and paper may be material can be called and may accumulate labeled “one of the three layers of this “compostable” if it over time in the tissues package is made of recycled plastic” if breaks down in a ‘free-of’ claims that can of humans and other the plastic layer is made entirely of recy- “timely manner,” organisms. For some cled plastic. FTC does not consider the which is defined as ap- be relevant food safety other substances, a de claim deceptive, provided the recycled proximately the same minimis analysis may plastic layer constitutes a significant time as other materials be more in order. component of the entire package. with which it is com- claims...” Nontoxic Claims: Renewable Materials: Made-with- posted. An unqualified non- renewable-materials claims should be Degradable: The guides indicate that toxic claim conveys that the product is qualified if less than 100 percent of it is deceptive to make an unqualified nontoxic to both humans and the envi- the package is made with renewable degradability claim for items destined ronment. “The environment” includes content, excluding minor, incidental for landfills, incinerators or recycling pets and domestic animals. The guides components. One way for marketers to facilities. Unqualified degradable claims advise marketers to qualify nontoxic minimize the risk of unintended, im- should be based on reliable scientific claims to the extent necessary to avoid plied claims is to identify the material evidence that the item will completely deception. While there is no allowance used and explain why it is renewable. break down within 1 year of entering for trace toxicity of a substance, FTC The Green Guides provide the follow- the solid-waste stream. FTC did not points out that a product could contain ing example of an acceptable renew- create a safe harbor for any particular a toxic substance at a level that is not able materials claim: “Our packaging is testing protocol, suggesting that current harmful to humans or the environment made from 50% plant-based renewable protocols do not replicate actual, highly and therefore justify a claim of “nontox- materials. Because we turn fast-growing variable landfill conditions. “Oxo- ic.” The commission gives the example, plants into bio-plastics, only half of our degradable” and “oxobiodegradable” in “The Green Guides: Statement of product is made from petroleum-based claims are treated like all other unquali- Basis and Purpose,” that while apple materials.” [16 CFR Section 260.16] fied degradable claims. seeds contain cyanide, which is toxic, Sustainable Claims: In “The Green Free-of Claims: This type of claim the amount in an apple is so low that it Guides: Statement of Basis and Pur- may be deceptive if a new or substituted is not harmful to humans and, therefore pose,” FTC explains that it is not pro- material poses the same or similar en- the apple may be labeled nontoxic. viding guidance on the use of the term vironmental risks as the original mate- Recyclable: To make an unqualified “sustainable” due to the wide range of rial, or if the substance has never been claim that an article is “recyclable,” a meanings for the term. Nevertheless, the associated with the product. However, product or package should be recyclable commission cautioned that marketers free-of claims may be acceptable if the to a “substantial majority” of consumers who use these claims should test them item contains trace amounts of the or communities, which FTC defines to in the context of their advertisements to material referenced if: (1) the level of mean at least 60 percent. Marketers may ensure they can be substantiated. “Giv- the specified substance is no more than make qualifying claims for “less than a en the potential for confusion, this area an acknowledged trace contaminant or substantial majority” of consumers or is ripe for further consumer perception background level; (2) the substance’s communities by either stating the per- research and one that the Commission presence does not cause material harm centage of consumers or communities will continue to monitor,” FTC stated. that consumers typically associate with that have access to recycling facilities Bio-Based Claims: Concerning bio- that substance; and (3) the substance or using other qualifications. However, based claims, FTC cites the U.S. De-

R e p r i n t e d f r o m F o o d S a f et y M ag a z i n e , A p r i l /M ay 2013, w i t h p e r m i ss i o n o f t h e p u b l i s h e rs . © 2013 by T h e T a r g et G r o u p • w w w . f o o d s a f et y m ag a z i n e . co m PACKAGING partment of ’s BioPreferred plastic products labeled as “composta- dardization (CEN), under mandate voluntary labeling program and explains ble,” “home compostable” or “marine from the European Commission (EC), that it does not want to make marketers degradable” must comply with an ap- developed standards to enable compa- subject to potentially contradictory ad- plicable ASTM Standard Specification, nies to demonstrate compliance with vice from two federal agencies. the Vinçotte OK Compost HOME the directive. The CEN standards were certification requirements (Vinçotte is last updated in 2004 and are referenced Alignment with ISO Standards a European Union-based company that in the February 19, 2005, edition of the During the comment period for the provides third-party certifications) or Official Journal of the European Union. revised Green Guides, FTC specifically a standard adopted by the California Use of the CEN standards is voluntary; asked if there were Department of Re- however, packaging conforming to the any international laws, sources Recycling and standards is considered compliant with regulations or stan- “[Minimizing] Recovery (CalRecycle). the directive’s essential requirements. dards that it should The California Public CEN packaging and waste standards consider. In particular, packaging waste... Resources Code, Sec- include the following: FTC asked about the tion 42355-42358.5, • EN 13427:2004, Packaging — ISO 14021 standard specifies that ASTM Requirements for the use of Euro- on self-declared en- needs to be done in a Standard Specification pean Standards in the field of pack- vironmental claims. refers to the follow- aging and packaging waste This standard was way that maintains... ing ASTM standards: • EN 13428:2004, Packaging — introduced in 1999 by D6400 for Composta- Requirements specific to manufac- the International Orga- ble Plastics, D7018 for turing and composition — Prevention nization for Standard- the safety and hygiene Nonfloating Biode- by source reduction ization (ISO), which gradable Plastics in the • EN 13429:2004, Packaging — Reuse develops standards of the product (i.e., for Marine Environment • EN 13430:2004, Packaging — through international or D6868 for Biode- Requirements for packaging recover- consensus and has a gradable Plastics Used able by material recycling membership of more food, keeps it safe)...” as Coating on Paper • EN 13431:2004, Packaging — than 160 national stan- and Other Composta- Requirements for packaging recover- dards institutes. In “The Green Guides: ble Substrates. able in the form of energy recovery, Statement of Basis and Purpose,” FTC including specification of minimum stated that while it tries to harmonize Current EU Framework inferior calorific value with international standards whenever Taking a different approach from • EN 13432:2000, Packaging — possible, it did not adopt the ISO stan- the U.S., the European Union (EU) Requirements for packaging recover- dard because consumers might interpret does not have legislation specifically able through composting and bio- unqualified recyclable claims allowed in dealing with and harmonizing environ- degradation — Test scheme and evalu- the standard to mean that facilities are mental marketing claims. Instead, the ation criteria for the final acceptance available in their area even when they are EU has taken a command-and-control of packaging not. Further explaining, FTC said that approach, in which it sets out the re- EN 13428:2004 includes methodol- the Green Guides’ purpose is to prevent quirements for companies to follow to ogy and procedures for determining the dissemination of misleading claims, reduce the use of packaging materials. the presence of four heavy metals (lead, while ISO focuses on both preventing In particular, the EU Packaging and cadmium, mercury and hexavalent chro- deception and encouraging products that Packaging Waste Directive (94/62/EC) mium) and other dangerous substances. cause less stress on the environment. contains “essential requirements” to The European Organization for Packag- prevent production of packaging waste ing and the Environment’s (EURO- State Laws and to increase recycling of packaging PEN) 2006 publication, Understanding California has joined in the effort to materials. While the goal is to minimize the CEN Standards on Packaging and the regulate environmental claims on pack- packaging waste, this needs to be done Environment: Some Questions and Answers, aging. A prohibition on the sale of any in a way that maintains: (1) the func- is available through the organization’s plastic bag or plastic food or beverage tionality of the package throughout the website at www.europen.be/index.php?a container labeled as “biodegradable,” supply and user chain; (2) the safety and ction=onderdeel&onderdeel=3&titel=K “degradable” or “decomposable” in hygiene of the product (i.e., for food, ey+Topics&categorie=1&item=14&back California was expanded to include all keeps it safe); and (3) the acceptability =%3Faction%3Donderdeel%26onderde plastic products, effective January 1, of the packaged product to the user. el%3D3%26titel%3DKey%2BTopics%2 2013. California also requires that any The European Committee for Stan- 6categorie%3D1.

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Industry Guidelines and Standards er, avoiding confusing jargon? environment — Energy recovery ICC Guidelines to Encourage Claim The CGF Global Protocol on Packag- • ISO 18606:2013 Packaging and the Substantiation: The proliferation of ing : An industry group environment — Organic recycling environmental claims has led a num- that has addressed sustainability claims While ISO 18602 is based on EN ber of industry organizations to issue specific to packaging is the Consumer 13428 and includes methodologies for voluntary guidelines. These guidelines Goods Forum (CGF), a Paris-based determining the presence of four heavy generally encourage marketers to make network of approximately 650 retailers, metals and other dangerous substances only claims that can be substantiated. manufacturers, packaging suppliers and in packaging, it places more emphasis on For example, the International Chamber other stakeholders from 70 countries. the amount of packaging necessary for of Commerce’s (ICC) Framework for CGF developed the “Global Protocol a package to function effectively. Thus, Responsible Environmental Marketing Com- on Packaging Sustainability 2.0” (GPPS) although food safety is not the pre- munications, published in 2010, states, to help the consumer goods industry eminent goal of the directive, it is some- “General environmental claims that assess the sustainability of packaging. thing that clearly is to be taken into ac- may prove difficult to substantiate using The first element of GPPS, published in count in balancing waste minimization. accepted scientific methods should be June 2010, is a framework and measure- avoided.” ment system, titled “A Global Language Conclusions ICC’s Framework defines a “green” for Packaging Sustainability.” The sec- A heightened interest in potential or “environmental” claim as any type of ond element, “The Global Protocol on environmental impacts of packaging, claim where “explicit or implicit refer- Packaging Sustainability,” which was along with new technologies in this ence is made to the environmental or published in September 2011, describes area, has led to discussions on how to ecological aspects relating to the pro- the metrics and indicators for sustain- provide accurate information to busi- duction, packaging, distribution, use/ ability of packaging. (The GPPS can be ness customers, consumers and other consumption or disposal of products.” downloaded at globalpackaging. stakeholders when marketing “green” Importantly, the framework advises that mycgforum.com/.) products. While efforts are being made all marketing communication, including The GPPS is based on packaging sus- to develop a consistent approach to green claims, should be judged by how tainability guidelines developed by defining and regulating sustainable it will be perceived by the reasonable EUROPEN and the metrics for sustain- packaging as new standards and guide- consumer. This would apply to a green able packaging developed by Green- lines for green packaging are introduced, claim that is scientifically accurate, but Blue’s Coalition. differences remain. It is important that misleads consumers because of what it The GPPS may be considered companies working in this arena keep implies or omits. Such a claim could be complementary to the ISO standards, abreast of developments. n deceptive. as several of the GPPS environmental An Environmental Claims Checklist attributes are based on ISO and CEN George G. Misko is a partner is provided in Appendix 1 of ICC’s standards. Noting that the GPPS uses in the Washington, DC, office of Framework. Some of the checklist ques- pre-existing internationally recognized Keller and Heckman LLP. He can be tions include the following: metrics where they exist, CGF states reached at [email protected]. • Are the proposed claims subject to that the GPPS is not intended to replace mandatory regulations or legislation? any existing standards or guidelines. • Are the proposed claims verifiable The recently published ISO environ- based on appropriate test methods or mental packaging standards are the scientific data? following: • What is the test method used? Is it • ISO 18601:2013 Packaging and the recognized by government agencies environment — General requirements or reputable standards organizations? for the use of ISO standards in the • Does the method accurately reflect field of packaging and the environ- how the product, component or ment package will likely be used or dis- • ISO 18602:2013 Packaging and the posed of by the consumer in the environment — Optimization of the manner reflected by the claim? packaging system • Has the product for which the claim • ISO 18603:2012 Packaging and the is made (or one substantially identi- environment — Reuse cal) been tested? • ISO 18604:2013 Packaging and the • Is the information provided under- environment — Material recycling standable to the reasonable consum- • ISO 18605:2013 Packaging and the

R e p r i n t e d f r o m F o o d S a f et y M ag a z i n e , A p r i l /M ay 2013, w i t h p e r m i ss i o n o f t h e p u b l i s h e rs . © 2013 by T h e T a r g et G r o u p • w w w . f o o d s a f et y m ag a z i n e . co m