Global Regulatory Considerations for Green Packaging
Total Page：16
File Type：pdf, Size：1020Kb
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 food 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 EP R INTED F R OM F OOD S AFETY M AGAZINE , A P R IL /M AY 2013, WITH PE R MI ss ION OF THE PUBLI S HE 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 recycling 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 EP R INTED F R OM F OOD S AFETY M AGAZINE , A P R IL /M AY 2013, WITH PE R MI ss ION OF THE PUBLI S HE 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 Agriculture’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.