The FTC is in the process of updating its venerable Green Guides, which "govern" environmental marketing claims in the United States. A big part of the Guides are its sections on Recycling Claims, which deal with whether and how marketers can claim products or packages they sell are "recyclable." The Guides currently create three tiers of permissible claims. If the item is accepted for recycling in 60% or more of communities where it is sold (a so-called "substantial majority" of communities), the marketer may make an unqualified claim that the product is recyclable. If it is between 25 and 60%, the marketer may make a qualified claim, and if it is less than that, the marketer should make a heavily qualified claim.
A strong signal that the FTC intends to make major revisions to this section, on May 23 the FTC convened a special workshop on recycling claims, bringing together various industry, activist, NGO and regulatory representatives to discuss the current state of recycling in the United States and how the Guides should be revised, if at all, to reflect current conditions.
A large part of the half-day meeting focused on plastics recycling. Testimony of various participants conveyed that consumers need to be told directly what is recyclable and what is not, and that they are confused because not all plastics are recyclable with current technologies. Others explained that the development of end-markets for recycled commodities is necessary to create "pull through" that will increase recycling. One commenter, however, said that the markets are there but underserved by raw recycled material availability.
Commenters also debated the meaning of "recyclable." If a product is labeled "recyclable," does that mean, as some courts have held, that the product can be recycled even if it is not actually recycled? What does "can be recycled" mean in practice? Stated differently, if the item is accepted by a municipality for recycling in a blue, curbside bin, should the manufacturer nevertheless be culpable for the failure of the municipality and downstream processors to carry out the actual reprocessing of the material? Can a marketer claim the product is recyclable if recycling is feasible but the means to recycle are not commercially available?
Another issue is what kinds of recycling should permissibly be called "recycling"? Should the term be limited to mechanical reprocessing only? This seems unduly restrictive. The plastics makers are heavily investing in development of "Advanced Recycling" technology, which uses various chemical and physical means to pull apart polymers in plastics to their monomer building blocks, which can be reassembled into usable products.
To what extent can virgin materials be commingled into recycling processes before the processes are no longer considered "recycling"?
Must "recycling" result in creation of certain usable products in order to be called "recycling"?
There are no clear answers here. However, reading the tea leaves of the testimony, questions posed by the FTC staff, and demeanor of those in attendance, I can venture some educated guesses:
- The FTC will raise the threshold for unqualified claims from 60% to some higher number (75%?) and will do away with the current, three-tier claims system, requiring most claims to be qualified in some way. The FTC staff repeatedly asked whether the 60% threshold should remain in place and if not, why not, suggesting that they are seriously considering moving away from that number.
- The FTC will not categorically declare that some recycling technologies do not qualify as "recycling", because doing so would put itself in the role of environmental regulator and choke off developing technology. However, it may require additional disclosures be used for non-mechanical recycling.
- The FTC will not change the definition of "recyclable" dramatically, but will require disclosure if the marketer has reason to believe that the item is not actually being recycled by a substantial percentage of communities that otherwise collect the item for recycling.
- The FTC is thinking about recyclability of plastic bags and films and may say that retailer-specific take back programs may or may not be recycling.
- The FTC will make clear that resin identification codes and the triangle logo must remain inconspicuous and are not evidence of recyclability. A number of state laws are now restricting the use of the chasing arrows symbol and the FTC will not wish to intrude on this.
- The FTC is considering, but I predict will not, breaking off this section of the guides and creating a standalone rule. As a prerequisite to rulemaking, the FTC must conclude that consumer deception is evident, which it probably does not have a sufficient basis to do. Moreover, the evolving nature of recycling markets and technology call for a lighter touch. A rule could actually chill recycling claims that are otherwise justified, resulting in more landfilled trash. As one commenter noted -- if two identical magazines are disposed of, with one being recycled and one tossed into a landfill, is the latter magazine not "recyclable"?
These are not easy issues and the FTC has set a post-hearing deadline of June 13 for receipt of comments on recycling and the workshop.