FTC Warns Plastic Bag Companies about Oxodegradable Claims

Continuing its focus on environmental claims, the Federal Trade Commission (FTC) has written to 15 producers of plastic bags warning that “oxodegradable” and “oxo-biodegradable” claims may be deceptive and asking for confirmation that the claims will be withdrawn or that competent and reliable scientific evidence supporting the claims will be provided.  Although the bags that are the subject of the letter have an additive intended to cause them to degrade in the presence of oxygen, the FTC’s view is that most waste bags will end up in a landfill (and are intended to), where it is unlikely that the bags will degrade in the time that the FTC believes consumers understand when they see degradability claims.

This enforcement action is consistent with prior FTC actions targeting degradability claims.  The FTC’s staff has strongly disfavored any type of degradable claim, arguing that most items are customarily disposed of in sanitary landfills, incineration facilities, or recycling facilities.  The conditions in these waste-management environments typically preclude complete decomposition within one year, which the FTC has found is the timeframe within which consumers expect a degradable item to decompose.  The FTC has not publicly identified the recipients of the letters, but warns that companies that did not receive a letter should not assume that their claims are consistent with applicable interpretations of Section 5 of the FTC Act.  An open question is whether consumers understand the claim to relate to what happens to the products if they are improperly disposed of.

Manufacturers and sellers understandably have a strong interest in improving the environmental attributes of their products, and in letting consumers know about the benefits of such products.  There may be legitimate areas of debate about both the basis for various degradability claims, especially given the growth of bioactive landfills, and consumer understanding of the claims.  Nevertheless, the FTC’s enforcement history suggests that degradability claims will continue to garner attention from the FTC and that the FTC sets a high bar for these claims. 

For more information on environmental/green claims, energy conservation requirements and labeling, and other product claims and safety issues, please contact Sheila A. Millar at millar@khlaw.com or +1 202 434-4143 or JC Walker at walker@khlaw.com or +1 202 434-4181.