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 gentle products on the environment and rely on the sustainability information they see on labels. Keeping compliance with green marketing claims 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. The toothpaste tubes are designed to be recyclable, but most recycling facilities do not accept them. Consequently, they often go unrecycled. In a class action lawsuit, consumers have taken Colgate-Palmolive to task for these claims (Della v. Colgate-Palmolive Company).
HDPE #2 plastic is recyclable and is commonly used for items like detergent bottles and milk jugs. However, plastic toothpaste tubes are usually not recyclable. This is because recycling facilities struggle to separate these tubes from conventional, non-recyclable ones, which use multiple layers of different 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 labels their tubes as recyclable, featuring the phrase “recyclable tube” along with the chasing arrows symbol, which is the universal sign for recyclables. Their packaging and websites also include statements like, “Recycle It—Our recyclable tube is not meant for a landfill–it gets turned into useful products.” However, there is no disclaimer on the packaging regarding the limitations of recycling program availability.
The 60% Rule
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 states that Colgate knows their products typically end up in landfills or are incinerated, as recycling facilities do not accept them. In a video, the company acknowledges this issue and says they are working on solutions.
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.
Right Materials, Wrong Size To Be Recyclable
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 could 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.
The Securities and Exchange Commission also took action against Keurig Dr Pepper Inc. for providing false information regarding the recyclability of its K-Cup single-use beverage pods. To resolve the SEC’s allegations, Keurig has consented to pay a civil penalty of $1.5 million.
Why Green Marketing is Imperative and Advantageous Despite Potential Challenges
Green marketing can present several unique challenges for businesses. Here are some of the primary challenges and tips to overcome them.
High Costs of Eco-Friendly Production
Developing green products often requires new technologies, materials, and production processes, which can increase your costs. Even with potentially higher costs, 50% of CEOs say they are using technology solutions to navigate sustainability, and 45% of them say they will be adding sustainability solutions in the future.
Higher Prices and Consumer Willingness to Pay
Green products can be more expensive than conventional alternatives, and consumers may not always be willing to pay a premium, particularly if they don’t see immediate personal benefits. This price sensitivity can limit whether or not people want to buy green products. However, according to PwC’s 2024 Voice of the Consumer Survey, “more than four-fifths (80%) of consumers say they are willing to pay more for sustainable produced or sourced goods.”
Limited Awareness and Understanding
Many consumers are still unfamiliar with the benefits of sustainable products or may not understand how green choices impact the environment. Educating customers to shift perceptions and align with green values is important, but challenging. Make it clear on your website and in marketing materials that by consistently using more sustainable and reusable products, it can reduce solid waste by up to 86% so they understand the impact they are having by buying your products.
Complex Supply Chain Management
From sourcing raw materials to distribution, meeting green standards can be complex. Suppliers may have varying levels of commitment to sustainability, which can create inconsistencies and make it challenging to maintain a genuine green brand. Bain & Company’s 2024 Visionary CEO’s Guide to Sustainability shows that 36% of buyers would change suppliers that didn’t meet their sustainability expectations.
Regulatory and Compliance Issues
Green marketing claims are regulated by environmental standards and policies, and adhering to these regulations, which vary across regions can be complex and costly. Companies may also face legal repercussions if they fail to comply or mislead consumers about their environmental impact. Greenwashing cases are usually costly to businesses because “plaintiffs often seek statutory penalties for a large class, attorney’s fees, disgorgement of monies, and potentially most damaging, brand trust and loyalty.”
Innovation and Scalability Limitations
Achieving sustainability often requires new, innovative approaches that might not scale easily. Small-scale green initiatives could work, but expanding them to meet larger market demands can be difficult, potentially limiting growth and impact. One example is to locally source your product. When your materials come from small businesses in your community, it supports your local economy and reduces transportation emissions all leading to a more sustainable environment.
Environmental Surveillance
A Valuable New Tool for Green Marketing and 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.
References
- Della v. Colgate-Palmolive Co.
- 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.