By Vicki Matranga, Design Programs Coordinator
Sustainability is a topic important to any business these days. Consumers read labels carefully and question alternatives as they shop for new products. Governments regulate and stimulate. Manufacturers and retailers aim to satisfy their customers. Costs for materials, energy and water are rising and everyone wants to save money. Companies often discover that going green can also result in saving green, the color of cash.
At the 2012 International Home + Housewares Show, we learned of many directions and issues in sustainability. We heard from industry insiders at the Innovation Theater and the Going Green display. This summer, a series of blog posts will offer a closer look of what we saw at the Show and we’ll continue the conversation with some of the industry leaders who appeared there.
At the Innovation Theater, lawyers Roger Colaizzi and Jeffrey Knowles, of Venable LLP, spoke on Can You Substantiate That? Alerting Marketers to Increasing FTC Scrutiny.
Roger and Jeff gathered some impressions from their visits with Show exhibitors for this interview. We hope that makers and sellers of housewares products will take note of some important tips here.
Roger, as you were walking through the exhibit halls what was one of the most common “green” issues you observed?
Well, there were certainly a lot of biodegradable claims. Not coincidentally that also happens to be the most common type of environmental marketing case brought by the FTC. Also, California currently bans the use of the term with respect to plastic bags and that will expand to all plastic products next year. There’s already been litigation in California and a California District Attorney sent a cease-and-desist letter to a company that makes a biodegradable claim for its dog poop bags (no word on what their position was with respect to what goes inside the bags.) The fact is that most solid waste that isn’t recycled goes into landfills and landfills are a pretty dismal place with little oxygen or water – and both are necessary for product to decompose. In the view of the FTC and the states, very little if anything will biodegrade in a landfill over any reasonable period of time. In fact, the FTC’s new proposed green guides say if a product is typically disposed of in a landfill then an unqualified biodegradable claim is deceptive and that for other solid wastes that aren’t typically disposed of in landfills they must biodegrade in a year or less.
Jeff, we’ve all seen claims that a product or package is made from a certain percentage of recycled materials. What is one of the most common concerns you see with this type of claim?
That’s a great question. Many companies buy raw materials like wood pulp from multiple suppliers and the percentage of recycled materials may vary from supplier to supplier. Then they combine all those raw materials to create cardboard or paper that is used for the package or product. In this type of situation the FTC allows you to use a weighted average. That percentage has to be calculated annually so if you expect some fluctuations in the raw materials you purchase you might want to slightly understate the actual number so you don’t have to revise your claims every year.
Roger, we see many environmental seals on products these days. Do you have any advice to offer in that regard?
Sure, and this is another area that has generated class-action litigation. There are two important things to remember with respect to “green” seals. First, if you create your own seal, make sure people understand that the seal is not from an independent third-party organization. Second, make sure you explain the criteria or basis for the seal unless it’s clear from the seal’s name (for example, “Certified Mercury-free.”)
Jeff, one final question. What is the single biggest mistake you see companies making with respect to green claims?
Well, none of my clients would do this, but the most common mistake I see is companies are promoting their products as “eco-friendly” without explaining why. In the FTC’s view that’s the equivalent of saying there’s nothing about your product that is bad for the environment. Since no one has yet invented such a product, you need to make sure you qualify or explain that type of claim. Awhile back I saw a poster in an ice cream shop that said ice cream cones were an “environmentally conescious” choice over a dish because there was no waste. That may have been a bad pun but it reflected good legal advice.
Thank you to Roger and Jeff for some valuable information and a few smiles. To learn more about their firm, see www.venable.com. Contact them with further questions: rcolaizzi@venable.com or jknowles@venable.com
