[Federal Register: March 3, 2008 (Volume 73, Number 42)]
[Proposed Rules]
[Page 11371-11375]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03mr08-19]
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FEDERAL TRADE COMMISSION
16 CFR Part 260
Guides for the Use of Environmental Marketing Claims; The Green
Guides and Packaging; Public Workshop
AGENCY: Federal Trade Commission.
ACTION: Announcement of public workshop; request for public comment.
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SUMMARY: The Federal Trade Commission (``FTC'' or ``Commission'') is
planning to host a public workshop on April 30, 2008, to examine
developments in green packaging claims and consumer perception of such
claims. The workshop is a component of the Commission's regulatory
review of the Guides for the Use of Environmental Marketing Claims,
which was announced on November 26, 2007.
DATES: The workshop will be held on Wednesday, April 30, 2008, from 9
AM to 5 PM at the FTC's Satellite Building Conference Center, located
at 601 New Jersey Avenue, N.W., Washington, D.C. Any written comments
in response to this Notice must be received by May 19, 2008.
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REGISTRATION INFORMATION:
The workshop is open to the public, and there is no fee for
attendance. The FTC also plans to make this workshop available via
webcast (see http://www.ftc.gov/bcp/workshops/packaging/index.html).
For admittance to the Conference Center, all attendees will be required
to show a valid photo identification such as a driver's license. The
FTC will accept pre-registration for this workshop. Pre-registration is
not necessary to attend, but is encouraged so that we may better plan
this event. To pre-register, please email your name and affiliation to
greenpackagingworkshop@ftc.gov. When you pre-register, we will collect
your name, affiliation, and your email address. This information will
be used to estimate how many people will attend. We may use your email
address to contact you with information about the workshop.
Under the Freedom of Information Act (``FOIA'') or other laws, we
may be required to disclose to outside organizations the information
you provide. For additional information, including routine uses
permitted by the Privacy Act, see the Commission's Privacy Policy at
www.ftc.gov/ftc/privacy.shtm. The FTC Act and other laws the Commission
administers permit the collection of this contact information to
consider and use for the above purposes.
WRITTEN AND ELECTRONIC COMMENTS:
The submission of comments is not required for attendance at the
workshop. If you wish to submit written or electronic comments to
inform discussion at the workshop, such comments must be received by
April11, 2008. All comments in response to this Notice must be
submitted no later than May 19, 2008. Comments should refer to ``Green
Packaging Workshop--Comment, Project No. P084200,'' to facilitate
organization of comments. A comment filed in paper form should include
this reference both in the text and on the envelope, and should be
mailed or delivered to the following address: Federal Trade Commission/
Office of the Secretary, Room H-135 (Annex B), 600 Pennsylvania Avenue,
N.W., Washington, D.C. 20580. Comments containing confidential material
must be filed in paper form, must be clearly labeled ``Confidential,''
and must comply with Commission Rule 4.9(c).\1\ The FTC is requesting
that any comment filed in paper form be sent by courier or overnight
service, if possible, because postal mail in the Washington area and at
the Commission is subject to delay due to heightened security
precautions.
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\1\ The comment must be accompanied by an explicit request for
confidential treatment, including the factual and legal basis for
the request, and must identify the specific portions of the comment
to be withheld from the public record. The request will be granted
or denied by the Commission's General Counsel, consistent with
applicable law and the public interest. See Commission Rule 4.9(c),
16 CFR 4.9(c).
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Comments filed in electronic form should be submitted by following
the instructions on the web-based form at https://
secure.commentworks.com/ftc-packagingworkshop. To ensure that the
Commission considers an electronic comment, you must file it on that
web-based form. You also may visit http://www.regulations.gov to read
this notice, and may file an electronic comment through that website.
The Commission will consider all comments that www.regulations.gov
forwards to it.
The FTC Act and other laws the Commission administers permit the
collection of public comments to consider and use in this proceeding as
appropriate. The Commission will consider all timely and responsive
public comments that it receives, whether filed in paper or electronic
form. Comments received will be available to the public on the FTC
website, to the extent practicable, at http://www.ftc.gov. As a matter
of discretion, the FTC makes every effort to remove home contact
information for individuals from the public comments it receives before
placing those comments on the FTC website. To read our policy on how we
handle the information you submit--including routine uses permitted by
the Privacy Act--please review the FTC's privacy policy, at http://
www.ftc.gov/ftc/privacy.shtm.
FOR FURTHER INFORMATION CONTACT: Janice Frankle, Attorney, 202-326-
2022, Laura Koss, Attorney, 202-326-2890, or Anne McCormick, Attorney,
202-326-3583, Division of Enforcement, Bureau of Consumer Protection,
Federal Trade Commission.
SUPPLEMENTARY INFORMATION:
I. Introduction
FTC staff is planning to conduct a one-day workshop on April 30,
2008, addressing environmental advertising claims regarding product
packaging. The workshop will explore ``green'' packaging claims,
consumer perception of these claims, and substantiation issues. The
workshop is one component of the Commission's regulatory review of the
Guides for the Use of Environmental Marketing Claims (``Green Guides''
or ``Guides''), 16 CFR Part 260, which the FTC announced on November
26, 2007.\2\
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\2\ The Federal Register Notice announcing this review is at 72
FR 66091 (Nov. 27, 2007), and can be found at http://www.ftc.gov/os/
2007/11/P954501ggfrn.pdf. The Commission reviews all of its rules
and guides periodically. These reviews seek information about the
costs and benefits of the Commission's existing rules and guides and
their regulatory and economic impact. The information obtained
during these reviews assists the Commission in identifying rules and
guides that warrant modification or rescission.
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This notice addresses several issues related to the upcoming
workshop; provides background on the Green Guides and the Green Guides
regulatory review; briefly discusses consumer protection issues raised
by green packaging claims used in today's marketplace; and provides a
short description of possible issues for discussion at the workshop as
well as questions for comment.
II. Background Information
This Federal Register Notice is part of the FTC's standard
regulatory review of the Green Guides. The following section provides
background information regarding the Green Guides and the Commission's
Green Guides regulatory review process.
A. The Green Guides
The Commission issued the Green Guides to help marketers avoid
making environmental claims that are unfair or deceptive under Section
5 of the FTC Act, 15 U.S.C. Sec. 45.\3\ Industry guides, such as
these, are administrative interpretations of the law. Therefore, they
do not have the force and effect of law and are not independently
enforceable. The Commission can take action under the FTC Act, however,
if a business makes environmental marketing claims inconsistent with
the Guides. In any such enforcement action, the Commission must prove
that the act or practice at issue is unfair or deceptive.
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\3\ The Commission issued the Green Guides in 1992 (57 FR 36363)
and subsequently revised them in 1996 (61 FR 53311), and in 1998 (63
FR 24240). The current Green Guides are available at http://
www.ftc.gov/bcp/grnrule/guides980427.htm.
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The Green Guides outline general principles that apply to all
environmental marketing claims and provide guidance regarding specific
claims. For all claims, the Guides advise that: qualifications and
disclosures be sufficiently clear and prominent to prevent deception;
marketers indicate whether their claims apply to the product, the
package, or a component of either; claims not overstate an
environmental attribute or benefit, expressly or by implication; and
[[Page 11373]]
marketers present comparative claims in a manner that makes the basis
for the comparison sufficiently clear to avoid consumer deception.
The Guides then specifically address: general environmental benefit
claims, such as ``environmentally friendly''; degradable,
biodegradable, and photodegradable claims; compostable claims;
recyclable claims; recycled content claims; source reduction claims;
refillable claims; and ozone safe/ozone friendly claims. For each, the
Guides explain how reasonable consumers are likely to interpret them.
The Guides also describe the basic elements necessary to substantiate
claims within each category and present options for qualifying specific
claims to avoid deception.\4\ The illustrative examples provide ``safe
harbors'' for marketers who seek certainty about how to make
environmental claims, but do not represent the only permissible
approaches to qualifying a claim that would otherwise be consistent
with the Guides.
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\4\ The Guides do not, however, establish standards for
environmental performance or prescribe testing protocols.
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B. Green Guides Regulatory Review
On November 27, 2007, the FTC published a Federal Register Notice
commencing the decennial regulatory review of the FTC's Green Guides.
The Notice solicited public comments in response to questions about the
Guides' costs, benefits, and effectiveness and also posed claim-
specific questions. The Notice announced that the FTC would be hosting
public meetings to facilitate public dialogue on issues relating to the
Green Guides review. The Commission will review and consider
information gathered at these meetings, in addition to the public
comments, in formulating its final determination.
On January 8, 2008, the Commission conducted its first public
meeting relating to the Green Guides Review--a workshop on Carbon
Offsets and Renewable Energy Certificates. The meeting announced
through this Federal Register Notice, entitled ``The Green Guides and
Packaging,'' will be the second public meeting planned as part of the
comprehensive review of the Green Guides. A public meeting aimed at
green claims related to packaging will enable participants and the
Commission to focus in-depth on an area in which a wide range of green
claims are prevalent.
III. Green Packaging Claims and Consumer Protection Issues
Since the Commission last revised the Green Guides in 1998, there
has been a marked increase in environmental claims, including ``green''
claims concerning product packaging. Sellers and marketers, for
example, frequently use terms addressed in the Green Guides, such as
``recyclable,'' ``biodegradable,'' ``degradable,'' ``compostable,'' or
``refillable,'' to claim their packaging is green. Sellers and
marketers also are using new green claims not presently addressed in
the Green Guides to emphasize the reduced environmental impact of their
packaging, including such terms as ``sustainable'' and ``renewable.''
For example, some marketers now claim to adhere to a ``cradle-to-
cradle'' philosophy, indicating that their product and its packaging
are specifically designed to be easily and continuously recyclable.\5\
Such claims, which concern the entire, and potentially repetitive life
cycle of product packaging, raise several consumer perception and
substantiation issues. Likewise, in recent years there has been a
proliferation of environmental seals and third-party certifications
purporting to verify the positive environmental impact of product
packaging. The criteria for and meaning of these seals and
certifications also raise consumer protection challenges.
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\5\ ``Cradle-to-cradle,'' a term coined by authors William
McDonough and Michael Braungart in their 2002 book entitled Cradle
to Cradle: Remaking the Way We Make Things, is commonly used to
indicate that a product has been designed from inception to be
easily and continuously recyclable, thereby never entering the waste
stream.
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Additionally, in recent years, marketers increasingly are using
``bio-based plastics''\6\ in packaging, resulting in new green
packaging claims. For example, some marketers now claim that bio-based
plastic bottles are ``commercially compostable.'' Proper disposal of
these bottles and other new packaging materials may require new or less
accessible recycling, composting, or disposal facilities. As a result,
such claims raise potential consumer perception and substantiation
issues.
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\6\ Bio-based plastics are derived from plant sources (such as
corn, potato starch, or sugar cane) rather than petroleum sources.
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IV. Issues and Questions for Discussion at the Workshop
Some possible topics for discussion at the workshop are: 1) trends
in packaging and the resultant environmental packaging claims; 2)
packaging terms currently covered by the Green Guides, including
``recyclable,'' ``recycled content,'' ``source reduction,''
``degradable'' (including ``biodegradable'' and ``photodegradable''),
``compostable,'' and ``refillable'' and whether consumer perception of
these terms have changed; 3) new green packaging claims not currently
addressed in the Guides, including ``sustainable,'' ``renewable,'' and
``bio-based''; 4) claims based on third-party certification and
consumer perception of these claims; 5) the impact of changes in
science and technology, including the use of new packaging materials
and the use of new recycling, composting, and disposal techniques, on
environmental packaging claims; 6) the state of substantiation for
environmental packaging claims; and 7) the need for additional or
updated FTC guidance in these areas.
In addition to considering these possible topics, the Commission
invites written comments on any or all of the following questions
regarding environmental packaging claims. The Commission requests that
responses to these questions be as specific as possible, including a
reference to the question being answered, and reference to empirical
data or other evidence wherever available and appropriate.
A. Recyclable
(1) How effective have the Guides been in preventing consumer deception
and providing business guidance with respect to ``recyclable'' claims
about packaging? Please provide any evidence that supports your answer.
(2) Has there been a change in consumer perception about ``recyclable''
packaging claims (e.g., ``Please recycle'' and the three-chasing-arrows
symbol) since the Guides were last revised?
(a) If so, please describe this change and provide any evidence that
supports your answer.
(b) Should the Guides be revised to address any such change? If so,
how?
(3) Has consumers' access to recycling facilities (e.g., curbside and
drop-off facilities) for packaging changed since the Guides were last
reviewed?
(a) If so, how, and how does this change affect consumers' perception
of what they can and cannot recycle? Please provide any evidence that
supports your answers.
(b) Should the Guides be revised to address any such change? If so,
how?
(4) Have the types of packaging capable of being recycled changed since
the Guides were last reviewed?
(a) If so, how, and how do these changes, if any, affect consumers'
perception of what they can recycle?
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Please provide any evidence that supports your answers.
(b) Should the Guides be revised to address any such changes? If so,
how?
(5) Are there ``recyclable'' claims in the marketplace concerning
packaging that are misleading? If so, please describe these claims and
provide any evidence that supports your answer.
(6) What recyclability disclosures are businesses currently making
about packaging?
(a) Are current recyclability disclosures adequate to apprise
consumers of the criteria for the recycling of packaging, the
appropriate methods of recycling, and/or the availability of
appropriate recycling facilities? Please provide any evidence that
supports your answer.
(b) Are current recyclability disclosures adequate for consumers to
understand whether the product or the package, or both, are recyclable?
Please provide any evidence that supports your answer.
(7) Should the current recyclability disclosures in the Guides be
revised? If so, how?
(8) To the extent not addressed in your previous answers, please
explain whether and how the Guides should be revised to prevent
consumer deception, provide business guidance, and/or reduce costs the
Guides impose on businesses, particularly small businesses, with
respect to ``recyclable'' claims about packaging. Please provide any
evidence that supports your answer.
B. Recycled Content
(1) How effective have the Guides been in preventing consumer deception
and providing business guidance with respect to ``recycled content''
claims about packaging? Please provide any evidence that supports your
answer.
(2) Has there been a change in consumer perception about ``recycled
content'' packaging claims (e.g., the three-chasing-arrows symbol)
since the Guides were revised?
(a) If so, please describe this change and provide any evidence that
supports your answer.
(b) Should the Guides be revised to address any such change? If so,
how?
(3) Do consumers make distinctions between ``pre-consumer'' recycled
content (i.e., materials recovered or otherwise diverted from the solid
waste stream during the manufacturing process) and ``post-consumer''
recycled content (i.e., materials recovered or otherwise diverted from
the solid waste stream after consumer use) in packaging? Please provide
any evidence that supports your answer.
(4) Have technological changes affected what consumers consider ``pre-
consumer'' and ``post-consumer''?
(a) If so, please describe these changes and provide any evidence that
supports your answer.
(b) Should the Guides be revised to address any such changes? If so,
how?
(5) Are there ``recycled content'' claims in the marketplace concerning
packaging that are misleading? If so, please describe these claims and
provide any evidence that supports your answer.
(6) To the extent not addressed in your previous answers, please
explain whether and how the Guides should be revised to prevent
consumer deception, provide business guidance, and/or reduce costs the
Guides impose on businesses, particularly small businesses, with
respect to ``recycled content'' claims about packaging. Please provide
any evidence that supports your answer.
C. Degradable, Biodegradable, Photodegradable, and Compostable
(1) How effective have the Guides been in preventing consumer deception
and providing business guidance with respect to ``degradable,''
``biodegradable,'' ``photodegradable,'' or ``compostable'' claims about
packaging? Please provide any evidence that supports your answer.
(2) Has there been a change in consumer perception of these claims
since the Guides were revised?
(a) If so, please describe this change and provide any evidence that
supports your answer.
(b) Should the Guides be revised to address any such change? If so,
how?
(3) How do consumers perceive ``degradable,'' ``biodegradable,''
``photodegradable,'' or ``compostable'' claims with respect to
packaging that consumers throw in the garbage (e.g., packaging
ultimately disposed of in a landfill)? Please provide any evidence that
supports your answer.
(4) The Guides provide that an unqualified claim that a package is
``compostable'' should be substantiated by evidence that all the
materials in the package will break down into, or otherwise become part
of, usable compost (e.g., soil-conditioning material, mulch) in a safe
and timely manner in an appropriate composting program or facility, or
in a home compost pile or device. Should the Guides be revised to
provide more specificity regarding the time frame for composting?
(a) If so, why, and what should the time frame be? Please provide any
evidence that supports your answer.
(b) If not, why not? Please provide any evidence that supports your
answer.
(5) Has consumers' access to municipal or institutional composting
facilities changed since the Guides were last reviewed?
(a) If so, how, and how does any such change affect consumers'
perception of what packaging they can and cannot compost? Please
provide any evidence that supports your answer.
(b) Should the Guides be revised to address any such change? If so,
how?
(6) Are there ``degradable,'' ``biodegradable,'' ``photodegradable,''
or ``compostable'' claims in the marketplace concerning packaging that
are misleading? If so, please describe these claims and provide any
evidence that supports your answer.
(7) To the extent not addressed in your previous answers, please
explain whether and how the Guides should be revised to prevent
consumer deception, provide business guidance, and/or reduce costs the
Guides impose on businesses, particularly small businesses, with
respect to ``degradable,'' ``biodegradable,'' ``photodegradable,'' or
``compostable'' claims about packaging. Please provide any evidence
that supports your answer.
D. Source Reduction
(1) How effective have the Guides been in preventing consumer deception
and providing business guidance with respect to ``source reduction''
claims about packaging? Please provide any evidence that supports your
answer.
(2) Has there been a change in consumer perception of these claims
since the Guides were revised?
(a) If so, please describe this change and provide any evidence that
supports your answer.
(b) Should the Guides be revised to address any such change? If so,
how?
(3) Are there ``source reduction'' claims in the marketplace concerning
packaging that are misleading? If so, please describe these claims and
provide any evidence that supports your answer.
(4) To the extent not addressed in your previous answers, please
explain whether and how the Guides should be revised to prevent
consumer deception, provide business guidance, and/or reduce costs the
Guides impose on businesses, particularly small businesses, with
respect to ``source reduction'' claims about packaging. Please provide
any evidence that supports your answer.
E. Refillable
(1) How effective have the Guides been in preventing consumer deception
and
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providing business guidance with respect to ``refillable'' claims about
packaging? Please provide any evidence that supports your answer.
(2) Has there been a change in consumer perception of these claims
since the Guides were revised?
(a) If so, please describe this change and provide any evidence that
supports your answer.
(b) Should the Guides be revised to address any such change? If so,
how?
(3) Are there ``refillable'' claims in the marketplace concerning
packaging that are misleading? If so, please describe these claims and
provide any evidence that supports your answer.
(4) To the extent not addressed in your previous answers, please
explain whether and how the Guides should be revised to prevent
consumer deception, provide business guidance, and/or reduce costs the
Guides impose on businesses, particularly small businesses, with
respect to ``refillable'' claims about packaging. Please provide any
evidence that supports your answer.
F. Ozone Safe and Ozone Friendly
(1) How effective have the Guides been in preventing consumer deception
and providing business guidance with respect to ``ozone safe'' or
``ozone friendly'' claims about packaging? Please provide any evidence
that supports your answer.
(2) Has there been a change in consumer perception of these claims
since the Guides were revised?
(a) If so, please describe this change and provide any evidence that
supports your answer.
(b) Should the Guides be revised to address any such change? If so,
how?
(3) Are there ``ozone safe'' or ``ozone friendly'' claims in the
marketplace concerning packaging that are misleading? If so, please
describe these claims and provide any evidence that supports your
answer.
(4) To the extent not addressed in your previous answers, please
explain whether and how the Guides should be revised to prevent
consumer deception, provide business guidance, and/or reduce costs the
Guides impose on businesses, particularly small businesses, with
respect to ``ozone safe'' or ``ozone friendly'' claims about packaging.
Please provide any evidence that supports your answer.
G. Claims Currently Not Addressed by the Green Guides
(1) Should the Guides be revised to include guidance regarding ``bio-
based'' packaging claims? If so, why, and what guidance should be
provided? If not, why not?
(a) What evidence supports making your proposed revision(s)? Please
provide this evidence.
(b) What evidence is available concerning consumer understanding of
the term ``bio-based''? Please provide this evidence.
(c) What evidence constitutes a reasonable basis to support a ``bio-
based'' claim? Please provide this evidence.
(2) Should the Guides be revised to include guidance regarding life
cycle or ``cradle-to-cradle'' packaging claims?
(a) If so, why, and what guidance should be provided? If not, why not?
Please provide any evidence that supports your answer.
(b) What evidence is available concerning consumer understanding of
life cycle analyses or the term ``cradle-to-cradle''? Please provide
this evidence.
(c) Is there an appropriate scientific methodology to evaluate life
cycle or ``cradle-to-cradle'' packaging claims? If so, please provide
any evidence that supports your answer.
(3) Are there other environmental claims concerning packaging not
currently addressed by the Guides, and if so what are they? Please
provide any evidence that supports your answer.
(a) Should the Guides be revised to include guidance regarding these
claims? If so, why, and what guidance should be provided? If not, why
not?
(b) What evidence is available concerning consumer understanding of
these claim(s)? Please provide this evidence.
(c) What evidence constitutes a reasonable basis to support these
claim(s)? Please provide this evidence.
H. Third-Party Certifications and Seals
(1) What evidence is available concerning consumer understanding of
third-party certifications and seals, labels, or symbols on packaging?
Please provide this evidence.
(2) Why are marketers using these third-party certifications and seals,
labels, or symbols on packaging? Please provide any evidence that
supports your answer.
(3) What criteria are third-party certifiers using to substantiate
claims made with third-party certification, seals, labels, or symbols
on packaging? Are those criteria appropriate? Please provide any
evidence that supports your answers.
(4) Should the Guides be revised to include additional guidance
regarding these claims? If so, how?
By direction of the Commission.
Donald S. Clark
Secretary
[FR Doc. E8-3972 Filed 2-29-08: 8:45 am]
BILLING CODE 6750-01-S