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California Proposes to Ban Biodegradable Claims for All Plastic Products

Date: Aug 06, 2010

Senate Bill 1454, currently under consideration by the California Assembly, would prohibit the sale of any plastic product that is labeled as "‘biodegradable,' ‘degradable,' or ‘decomposable,' or any form of those terms, or in any way imply that the plastic product will break down, fragment, biodegrade, or decompose in a landfill or other environment."[1] Only "compostable" or "marine degradable" claims would be allowed, and only if such claims meet specified American Society for Testing and Materials (ASTM) standard specifications for demonstrating compostability or marine biodegradability. The bill has already passed the California Senate and is expected to pass the Assembly given that California overwhelmingly approved similar limitations on claims for plastic bags and food service containers in 2008.

Biodegradability claims are under increasing scrutiny because of concerns such claims may confuse or mislead the public.

Ban Would Apply to All Plastic Products

Currently, California prohibits biodegradability claims solely on plastic bags and plastic food and beverage containers. Under S.B. 1454, no person could sell a plastic product in California "that is labeled with the term ‘biodegradable,' ‘degradable,' or ‘decomposable,' or any form of those terms, or in any way imply that the plastic product will break down, fragment, biodegrade, or decompose in a landfill or other environment." The bill would define "plastic product" broadly as "a product made of plastic, whether alone or in combination with other material, including, but not limited to, paperboard."[2] Plastic products would include at a minimum consumer products; packages or a packaging components; plastic bags, sacks, wraps, or "other thin plastic sheet film products;" as well as food service containers, straws, lids, or utensils.

According to one of the proposed legislative findings:

Given the complex nature of biodegradation and the fact that most plastic products will travel through multiple environments from the time of manufacture to the time of final disposition, and given the intrinsic constraints of marketing claims, including the space on the plastic product, there is no reasonable ability for plastic product manufacturers to provide an adequate disclaimer qualifying the use of these and like terms without relying on an established scientific standard specification for the action claimed.

As with the current law, the only permissible labeling claims would be "compostable" and "marine degradable," and only if the plastic product meets the entire ASTM Standard Specifications: D6400 for Compostable Plastics, and D7081 for Non-Floating Biodegradable Plastics in the Marine Environment. S.B. 1454 would add a third ASTM Standard Specification: D6868 for Biodegradable Plastics Used as Coatings on Paper and Other Compostable Substrates. Critically, the law does not recognize ASTM Standard Guides, Practices, or Test Method, which to date have been used to demonstrate the efficacy of additives intended to promote the degradation of petroleum-based plastics.

Going forward, products that cannot fully meet the Standard Specifications may be able to bear limited compostability or marine biodegradability claims, provided they bear disclaimers that have been approved by the Department of Resources Recycling and Recovery. Qualified biodegradable claims would not be permitted, however. It is not clear at this time whether a company would have to submit a disclaimer for review, or whether the Department is to develop such language independently. Manufacturers and suppliers of plastic products bearing "compostable" or "marine degradable" claims also would be required to provide substantiation of such claims within 90 days of receiving a request from the public. The law provides civil penalties in the amount of five hundred dollars ($500) for the first violation, one thousand dollars ($1,000) for the second violation, and two thousand dollars ($2,000) for the third and any subsequent violation. These penalties would not be exclusive, but rather in addition to penalties under California's false advertising laws.

Biodegradability Claims Under Increasing Scrutiny

Environmental claims have received renewed attention over the past couple of years because of increasing concerns about "green washing" and the U.S. Federal Trade Commission's ("FTC's") pending review of its Guides for the use of Environmental Marketing Claims (hereinafter, "Green Guides"). The FTC enforces Section 5 of the FTC Act, which generally prohibits "unfair or deceptive acts or practices," including advertising or labeling that is false or misleading. The FTC Green Guides set forth the Commission's position on when environmental claims may or may not be consistent with the general requirements of the FTC Act.

In June of 2009 the FTC announced that it was taking action against three companies for making deceptive biodegradable claims.[3] As the FTC explained in its press release "the defendants' products typically are disposed in landfills, incinerators or recycling facilities, where it is impossible for waste to biodegrade within a reasonably short time." A New York Times article published at the time of these charges also is instructive.[4] According to the article, an attorney with the FTC's Bureau of Consumer Protection indicated that these actions were intended to serve notice that unqualified biodegradability claims are probably false and cannot be substantiated:

"Maybe a piece of produce could be labeled biodegradable if it's customarily disposed of through composting...but the statistics show that most household trash goes to landfills. So even a piece of produce might not biodegrade [in a reasonable period of time]."

The FTC position leaves some room for qualified biodegradability claims, but the need for California's draconian restrictions on commercial speech are unclear. For instance, S.B. 1454 would find that the size of plastic packaging or products does not allow for the adequate disclaimer of biodegradability claims on a plastic product or product package, yet the bill would provide for the use of disclaimers for compostable and marine degradable claims so long as these have been approved by the state.

S.B. 1454 arguably runs afoul of Supreme Court precedent on the extent to which states can restrict commercial speech. "States may not completely ban potentially misleading commercial speech if narrower limitations can ensure that the information is presented in a nonmisleading manner."[5] Nevertheless, California seems intent on prohibiting biodegradable claims without providing the claimant an opportunity to qualify or otherwise present such claims in a manner that is not misleading.

Following a hearing, SB 1454 passed out of the Assembly's Appropriations Committee on August 4, 2010. Thus, absent greater opposition than has been mustered to date, the bill is expected to pass and to be signed by the Governor.

Please contact J.C. Walker at 202-434-4181 or walker@khlaw.com for more information.



[1] S. 1454, 2009-10 Leg. § 42357(b) (Cal. 2010).

[2] Id. at § 42356(e).

[5] Ibanez v. Florida Department of Business and Professional Regulation, 512 U.S. 136, 152 (1994); see also In re R.M.J, 455 U.S. 191, 203 (1982). (Misleading advertising may be prohibited entirely but States may not place an absolute prohibition on certain types of potentially misleading information . . . if the information also may be presented in a way that is not deceptive).