In this blog post series, we aim to shed light on the paramount importance of staying vigilant in the realm of green marketing claims compliance. Our goal is to equip you with insights that empower your decision-making processes, ultimately safeguarding your brand’s reputation and ensuring a genuine commitment to sustainability.
Join us as we delve into the intricacies of green claims, unravel the legal nuances, and underscore why a proactive approach to compliance is not just advantageous but imperative for today’s conscientious business.
Today we will investigate using the claim of Recyclable when the material is recyclable but the size or shape is not.
Recyclable in Theory vs. Recycled in Practice
Consumers want products that are gentle on the environment and rely on the sustainability information they see on labels. Keeping green marketing claims compliance in mind is important. They’re willing to pay extra for recyclable products but feel misled when their recycling efforts go to waste, and products end up in landfills or incinerators. When this happens, even companies with good intentions pay the price.
To avoid greenwashing accusations, companies must ensure that their sustainability claims are accurate, especially regarding the recyclability of their products and packaging materials. Just because a company claims its products are recyclable doesn’t guarantee they will be recycled. Factors such as the shape or size of a product can determine whether it is actually recyclable.
Making false claims about the recyclability of products can lead to reputational damage and legal consequences, as demonstrated in class action lawsuits brought against Colgate-Palmolive and Keurig Green Mountain by consumers.
Right Materials, Wrong Shape
In response to customers wanting greener products, Colgate-Palmolive developed a toothpaste tube made of recyclable high-density polyethylene plastic (HDPE #2 plastic). Various Colgate products and Tom’s of Maine Natural Toothpaste label and marketed these tubes as recyclable. While the toothpaste tubes were designed to be recyclable, in most cases they are not recycled in practice because recycling facilities do not currently accept the redesigned tubes. In a class action lawsuit, consumers have taken Colgate-Palmolive to task for these claims (Della v. Colgate-Palmolive Company).
Although HDPE #2 plastic is recyclable (most notably as detergent bottles and milk jugs), the plastic toothpaste tubes usually do not get recycled because processors cannot separate them from the different materials of the similarly shaped, conventional, non-recyclable toothpaste tubes (made of multiple layers of nonrecyclable plastics and metal). All toothpaste tubes get rejected. According to Sandeep Kalkarni, a consultant at the Association of Plastic Recyclers, as quoted in the claim, “…it’s easier for recycling facilities to reject toothpaste tubes across the board.”
It’s not just easier; the FTC’s Guides for the Use of Environmental Marketing Claims or “Green Guides” mandate that “[a]n item that is made from recyclable material, but, because of its shape, size, or some other attribute, is not accepted in recycling programs, should not be marketed as recyclable.” (16 C.F.R. § 260.12(d)
Colgate and Tom’s of Maine’s tubes are labeled as recyclable, with the text “recyclable tube” and the chasing arrows symbol, the universal symbol for recyclables on the package. There are additional claims on the packaging and websites, such as “Recycle It– Our recyclable tube is not meant for a landfill—it gets turned into useful products.” The packaging, however, has no disclaimer about limits to the availability of recycling programs.
The FTC’s “Green Guides” specify that labeling products as “Recyclable” is not allowed unless recycling programs are available to at least 60% of the consumers or communities where the products are sold. A product that claims to be recyclable without such programs is considered deceptive to reasonable consumers. Indeed, the case states: “…virtually all of the municipal recycling programs and materials recovery facilities (“MRFs”) in California and the United States (sic) reject the Products.”
The complaint also states that Colgate knows that the products typically end up being disposed of in landfills or incinerated because recycling facilities do not accept them. The defendant has released a video explaining that they are working to find solutions, acknowledging that recyclers do not accept the tubes.
These HDPE plastic toothpaste tubes also get discarded because they cannot be fully emptied and cleaned. The leftover toothpaste can contaminate the recycling stream, making other items unrecyclable.
The request for dismissal by the company was denied, and the case is pending.
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Right Materials, Wrong Size
In this case of plastics promoted as recyclable (Smith et al. v. Keurig Green Mountain, Inc.), the court determined that Keurig Green Mountain advertised and marketed its coffee pod cups as recyclable even though they were too small to be processed by municipal recycling facilities. Additionally, in cases where recyclers were able to capture cups from the general waste stream, they ended up in the landfill anyway because there is currently no market to recycle them.
According to the complaint, Keurig advertised its products as recyclable, and its packaging included instructions on how to recycle them. The label displayed the statement “Have your cup and recycle it, too” in large green font, accompanied by illustrations and the chasing arrow symbol commonly used for recyclable products.
The Keurig labels failed to adequately qualify the recyclability of their product using only the brief statement “[c]heck locally.” This statement is deceptive according to the FTC “Green Guides,” which state: “Marketers should clearly and prominently qualify recyclable claims to the extent necessary to avoid deception about the availability of recycling programs and collection sites to consumers.” (16 C.F.R. § 260.12(b). The settlement requires Keurig to qualify the recyclability of their pods by including the disclaimer “Check Locally – Not Recycled in Many Communities.”
Keurig Green Mountain settled for 10 million dollars. Keurig Canada settled a similar case for 3 million Canadian dollars.
TODAY’S TAKEAWAYS
Green Marketing Tips to Reduce Your Risk of Non-Compliance and Safeguard Your Reputation:
- Make sure product materials are compatible with recycling facilities
- Will your claim be confusing or misleading to the consumers?
- Use FTC Green Guides, EU Green Claim Directives and your State Laws as Guidelines
- Green claim monitoring is essential. Use industry experts, such as Softly Solutions.
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Sustainability Surveillance
A Valuable New Tool for Green Advertising
Considering the impending changes in green marketing regulations, it is important to begin preparing now. Green marketing claims compliance is more important than ever. Softly stands ready to assist your business in this transition. Our solutions are specifically designed to facilitate the monitoring and managing of brand sustainability narratives online.
The advent of new green claims regulations is imminent. Proactive measures are not just recommended, but essential. We invite you to take the first step today. Let us partner with you in navigating the complexities of sustainable transparency and compliance.
Issues or questions? Drop us a line at hello@softlysolutions.com.
References
- Weingartner et al. v. Colgate-Palmolive Co.
- Guides for the Use of Environmental Marketing Claims
- The Recyclable Plastic Transforming Toothpaste Tubes
- Smith et al. v. Keurig Green Mountain, Inc.
- Smith et al. v. Keurig Green Mountain, Inc. Class Action Complaint
- https://resource-recycling.com/plastics/2022/01/12/canadian-officials-force-keurig-to-change-recycling-instructions/amp/
Information provided is for general purposes only and not legal advice; consult a qualified attorney for personalized guidance. Softly disclaims any liability for actions based on this information.