FTC Cuts Down Plastic Lumber Recycled Content Claims

Date: Jun 20, 2014

For the second time in five months, the Federal Trade Commission (FTC) has announced a settlement of allegedly deceptive recycled content claims for plastic lumber. 

In its administrative complaint, the FTC claimed that American Plastic Lumber (APL) used deceptive and unfair marketing practices by stating and implying the company’s products were almost completely made from 100% post-consumer product.  Express claims included claims that the plastic lumber was made of high density polyethylene (HDPE) from recycled milk jugs and that the lumber contained over 90% recycled plastic by weight.  In reality, the FTC found that the corporation’s products averaged less than 79 percent recycled content.  The Commission further found that 8 percent of APL's products contained no post-consumer content and almost 7 percent of the products only contained 15 percent post-consumer content.

Under the terms of the settlement, APL is prohibited from making environmental claims about the recycled content of its products unless it can substantiate the claims using reliable scientific evidence.  Further, the settlement requires APL to make its marketing materials available to the FTC for the next five years.  The order will expire in 20 years.  The terms are similar to those reached in connection with the FTC’s earlier challenge to recycled content claims for plastic lumber involving N.E.W. Plastics Corporation, which was settled in February 2014.

The Director of the FTC’s Bureau of Consumer Protection urged businesses to review FTC’s Green Guides to better understand what “green” claims companies can make without violating Section 5 of the FTC Act.  While prior FTC actions focused on environmental claims for plastic products have targeted degradable claims, these two back to back actions on recycled content claims may signal a new focus on such claims more generally.  When it comes to recycled content claims, the rules are clear.  If your product is not made almost entirely from recycled materials, the amount or percentage of recycled content should be disclosed, and the disclosure must accurately reflect the amount likely to be found in the advertised products.

For more information about green claims and other consumer protection–related issues, contact Sheila A. Millar at 
millar@khlaw.com or 202 434-4143; JC Walker at walker@khlaw.com or 202 434-4181; or Tracy P. Marshall at marshall@khlaw.com or 202 434-4234.