Advertising Law Blog

On June 9, 2009 the FTC charged Kmart Corp., Tender Corp., and Dyna-E International with making false and unsubstantiated claims that their paper products were "biodegradable." Kmart and Tender have agreed to settle the cases against them; the case against Dyna-E will be litigated. With the recent growth in "green" advertising and product lines, the FTC stated it will continue its efforts to ensure that environmental marketing is truthful, substantiated, and not confusing to consumers.

Administrative Complaints Against Kmart, Tender, and Dyna-E for "Biodegradable" Claims. In the three complaints, the FTC charged retailers with making deceptive and unsubstantiated biodegradability claims: Kmart Corp. called its American Fare brand disposable plates biodegradable, Tender Corp. called its Fresh Bath-brand moist wipes biodegradable, and Dyna-E International called its Lightload brand compressed dry towels biodegradable.

Since 1992, the FTC's "Green Guides" have advised marketers that unqualified biodegradable claims are acceptable only if they have scientific evidence that their product will completely decompose within a reasonably short period of time under customary methods of disposal. In the three complaints, the FTC alleged that 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.

Kmart and Tender have agreed to orders that bar them from making deceptive "degradable" product claims and require them to have competent and reliable evidence to support environmental product claims. The settlement with Tender also requires it to disclose clearly whether any biodegradable claim applies to the product, the packaging, or component of either. Both settlements contain record-keeping and reporting provisions to assist the FTC in monitoring the companies' compliance. The third matter, against Dyna-E and its owner, George Wheeler, will proceed in administrative litigation.

The FTC's Guides for the Use of Environmental Marketing Claims (Green Guides) are the centerpiece of the FTC's environmental marketing efforts, according to the testimony. The Green Guides help marketers avoid making false or misleading green claims by explaining how consumers understand commonly used terms, such as "biodegradable" and "recyclable," and by describing the basic elements needed to substantiate those claims. As part of the FTC's current review of the Green Guides, the agency has held a series of workshops and plans to study consumers' understanding of particular claims, such as "sustainable" and "carbon neutral," which were not common when the FTC last updated its Guides.