[Federal Register Volume 61, Number 199 (Friday, October 11, 1996)]
[Rules and Regulations]
[Pages 53311-53320]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25938]


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FEDERAL TRADE COMMISSION

16 CFR Part 260


Guides for the Use of Environmental Marketing Claims

AGENCY: Federal Trade Commission.

ACTION: Final rule; Publication of revised guides.

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SUMMARY: The Federal Trade Commission (the ``FTC'' or ``Commission'') 
issued its Guides for the Use of Environmental Marketing Claims 
(``guides'') on July 28, 1992. 57 FR 36363 (Aug. 13, 1992), codified at 
16 CFR Part 260. The guides included a provision for public comment and 
review three years after adoption for the purpose of determining 
whether there is a need for any modifications. In connection with the 
three year review, the Commission sought public comment on a variety of 
issues pertaining to the guides, 60 FR 38978 (July 31, 1995) and held a 
two day Public Workshop-Conference on December 7 and 8, 1995. The 
Commission has completed its review of the prefatory sections of the 
guides, as well as the following sections: General Environmental 
Benefits, Degradable/Biodegradable/Photodegradable, Recycled Content, 
Source Reduction, Refillable, and Ozone Safe and Ozone Friendly. These 
sections are being republished with only the minor revisions discussed 
below.
    The Commission is still in the process of reviewing the Compostable 
and Recyclable guides. The original versions of these guides shall 
remain in effect until further notice. See 16 CFR 260.7 (c) and (d). 
Finally, the Commission is seeking further public comment on the issue 
of whether product parts that can be reconditioned and/or reused in the 
manufacture of new products should be considered ``recyclable'' under 
the guides and whether products manufactured from such reconditioned 
and/or reused parts should qualify as ``recycled'' under the guides.

DATES: Effective Date: October 4, 1996.

    COMMENTS: Comments and/or data must be submitted on or before 
November 25, 1996.

ADDRESSES: Although the Commission has concluded its general review of 
the guides, it is seeking additional information on two discrete 
issues: (1) Whether product parts that can be reconditioned and/or 
reused in the manufacture of new products should qualify as 
``recyclable'' under the guides and whether products manufactured from 
such reconditioned and/or reused parts should qualify as ``recycled'' 
under the guides: and (2) any additional empirical evidence available 
on consumer perception of ``recyclable'' and ``compostable'' claims. 
Six paper copies of comments and/or data should be submitted to: 
Secretary, Federal Trade Commission, Room H-159, Sixth and Pennsylvania 
Ave., N.W., Washington, D.C. 20580. Comments should be identified as 
``16 CFR Part 260--Comment.'' To encourage prompt and efficient review 
and dissemination of the comments and data to the public, all comments 
and data also should be submitted, if possible, in electronic form, on 
either a 5\1/4\ or a 3\1/2\ inch computer disk, with a label on the 
disk stating the name of the commenter and the name and version of the 
word processing program used to create the document. (Programs based on 
DOS are preferred. Files from other operating systems should be 
submitted in ASCII text format to be accepted.) Individuals filing 
comments or data need not submit multiple copies, and need not submit 
such materials in electronic form.
    The FTC will make this notice and all comments and data received in 
response to this notice available to the public through the Internet, 
to the extent technically possible. To access this notice and the 
comments and data filed in response to this notice, access the World 
Wide Web at the following address: http://www.ftc.gov. At this time, 
the FTC cannot receive comments or data made in response to this notice 
over the Internet.

FOR FURTHER INFORMATION CONTACT: Kevin M. Bank, (202) 326-2675, 
Division of Advertising Practices, Bureau of Consumer Protection, 
Federal Trade Commission, 6th and Pennsylvania Avenue, NW., Washington, 
DC 20580.

SUPPLEMENTARY INFORMATION:

1. Background

    The Guides for the Use of Environmental Marketing Claims or 
``guides'' were issued by the Commission on July 28, 1992, and

[[Page 53312]]

published in the Federal Register on August 13, 1992 (57 FR 36363). 
Like other industry guides issued by the Commission, the Environmental 
Marketing Guides ``are administrative interpretations of laws 
administered by the Commission for the guidance of the public in 
conducting its affairs in conformity with legal requirements.'' 16 CFR 
1.5. They provide the basis for advertisers' voluntary compliance with 
the law, as well as simultaneous abandonment of unlawful practices. 
Conduct inconsistent with the guides may result in corrective action by 
the Commission if this conduct is found to be in violation of 
applicable statutory provisions. The Commission promulgates industry 
guides ``when it appears to the Commission that guidance as to the 
legal requirements applicable to particular practices would be 
beneficial in the public interest and would serve to bring about more 
widespread and equitable observance of laws administered by the 
Commission.'' 16 CFR 1.6.
    The Environmental Marketing Guides indicate how the FTC will apply 
Section 5 of the Federal Trade Commission Act (``FTC Act''), which 
prohibits unfair or deceptive advertising claims, in the area of 
environmental marketing claims.1 The guides apply to all forms of 
marketing of products to the public, whether through advertisements, 
labels, package inserts, or promotional materials.
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     1  15 U.S.C. 45.
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    The guides reiterate Commission policy regarding how Section 5 
applies to advertising claims generally, as enunciated in the 
Commission's Policy Statement on Deception,2 and its Policy 
Statement on the Advertising Substantiation.3 Four general 
principles are outlined that apply to all environmental marketing 
claims: Qualifications and disclosures should be sufficiently clear and 
prominent to prevent deception; claims should make clear whether they 
apply to the product, the package or a component of either; claims 
should not overstate an environmental attribute or benefit, expressly 
or by implication; and comparative claims should be presented in a 
manner that makes the basis for the comparison sufficiently clear to 
avoid consumer deception.
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     2  Federal Trade Commission Policy Statement on Deception, 
appended to Cliffdale Assocs., Inc., 103 F.T.C. 110 (1984).
     3  Federal Trade Commission Policy Statement Regarding 
Advertising Substantiation, appended to Thompson Medical Co., 104 
F.T.C. 648 (1984).
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    In addition, the guides address eight specific categories of 
environmental claims: general environmental benefits, ``degradable,'' 
``compostable,'' ``recyclable,'' ``recycled content,'' ``source 
reduction,'' ``refillable,'' and ``ozone safe''/``ozone friendly.'' 
Each guide describes the basic elements necessary to substantiate the 
claim, including examples of qualifications that may be used to avoid 
deception. In addition, each guide is followed by several examples that 
illustrate different uses of the particular term that do and do not 
comport with the guides. In many of the examples, one or more options 
are presented for qualifying a claim. The guides state that these 
options are intended to provide a ``safe harbor'' for marketers who 
want certainty about how to make environmental claims, but that they do 
not represent the only permissible approach to qualifying a claim.
    The guides included a provision that three years after adoption, 
the Commission would seek public comment on ``whether and how the 
guides need to be modified in light of ensuing developments.'' Pursuant 
to this provision, the Commission sought comment on the guides in a 
Federal Register Notice published on July 31, 1995 (60 FR 38978) 
(hereinafter ``Notice''). The Commission sought comment on a number of 
general issues relating to the guides' efficacy and the need, if any, 
to revise or update the guides. The Commission also sought comment on a 
number of specific issues related to particular environmental claims 
addressed by the guides. In addition, the Notice announced that 
Commission staff would be conducting a Public Workshop-Conference at 
the conclusion of the comment period to discuss issues raised by the 
written comments. Forty-four of the ninety-nine commenters participated 
in the workshop, which was held on December 8 and 9, 1995.

2. Overview of Comments and Public Workshop-Conference

    The ninety-nine comments received in response to the Notice came 
from forty-five trade associations or trade association coalitions, 
twenty-eight manufacturers, distributors or retailers, twelve 
consumers, environmental or public advocacy organizations, one 
standards organization, two certification organizations, two federal 
government agencies or officials, four State government officials or 
bodies, one city government official, one individual, one educational 
institution, one consulting company, and one public-private recycling 
coalition. Virtually all the commenters supported the guides in 
general, although many recommended specific changes. A brief overview 
of the comments received in response to questions posed in the Notice 
follows. This summary is not intended to be comprehensive. The full 
texts of the written comments and the transcript of the Public 
Workshop-Conference are available for inspection and copying at the 
Federal Trade Commission, 6th and Pennsylvania Avenue, N.W., 
Washington, D.C., Room 130. These materials are also accessible to the 
public through the Internet on the World Wide Web at the following 
address: http://www.ftc.gov

(a) Continuing Need for the Guides

    The commenters who addressed whether there is a continuing need for 
the guides all agreed that there is such a need. A handful of 
commenters, while supporting the guides, indicated that they would 
prefer a trade regulation rule because it would have the force of law 
and preempt state laws regulating the use of environmental advertising 
claims.

(b) The Costs and Benefits of the Guides to Consumers and Industry

    There was a general consensus among commenters that the guides 
benefit consumers by stemming the tide of spurious environmental 
claims; bolster consumer confidence; increase the flow of specific and 
accurate environmental information to consumers, enabling them to make 
informed purchasing decisions; and encourage manufacturers to improve 
the environmental characteristics of their products and packaging. The 
commenters either felt that the guides do not impose any costs on 
consumers or that any costs associated with the guides are 
insignificant and greatly outweighed by their benefits. Several 
commenters raised serious concerns, however, that the Recyclable guide 
unnecessarily restricts the flow of information to consumers regarding 
the recyclability of products. One commenter voiced similar concerns 
about the Compostable guide.
    In addition, commenters generally agreed that the guides benefit 
industry by providing uniform, consistent guidance regarding the making 
of non-deceptive environmental claims; promoting national consistency 
in the treatment of environmental marketing claims; assisting 
advertisers in determining what claims would likely lead to Commission 
challenge; encouraging network review and industry self-regulation; and 
allowing flexibility for manufacturers to improve the environmental 
attributes of their products and to communicate those improvements to 
consumers. For the most part, commenters stated that the

[[Page 53313]]

guides accomplish their goals without undue burden on industry, 
although this view was not unanimous. Again, several commenters 
complained of what they believe are undue restrictions placed on their 
ability to make recyclable claims. They believe that recyclability is 
an important product attribute and that they should be able to more 
flexibly inform consumers regarding the recyclability of their 
products.\4\
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    \4\ Because of the serious concerns raised about the Recyclable 
guide, the Commission is seeking additional data.
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(c) Effect of Changes in Technology or Economic Conditions

    The commenters identified few technological or economic changes 
that might impact the guides. A number of comments from industry cited 
increases in recycling rates and the number of recycling programs as 
justification for making the Recyclable guide less ``restrictive.'' 
Others stated that recycling rates have not increased sufficiently, 
overall, to require modification of the guides. Several environmental 
organizations pointed out that while the already high recycling rates 
for some items such as newspapers and plastic soda bottles and milk 
jugs have further increased, there has been little increase in the 
recycling rates of less frequently recycled items like most other types 
of plastic packaging. Therefore, they stated that the Recyclable guide 
should not be made less ``restrictive.''

(d) Effect of the Guides in Fostering National Uniformity in the 
Regulation of Environmental Claims

    There was general agreement among the commenters that the guides 
have helped promote uniformity in the regulation of environmental 
marketing claims. There was also general agreement that any conflict 
between the guides and some state laws is becoming less significant as 
a result of states such as California, New York, and Rhode Island 
either repealing or modifying pre-existing laws concerning 
environmental marketing claims to be consistent with the guides.\5\ 
However, a few manufacturers continued to express concern that a lack 
of national uniformity inhibited them from advertising the 
environmental attributes of their products. They urged the Commission 
to try to encourage more states to adopt the guides. A significant 
number of commenters, especially industry representatives, voiced 
strong opposition to changing the guides in any way that would 
undermine the important state support the guides are now receiving.
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    \5\ A potential conflict was identified by commenters who oppose 
a change in the Commission's approach to the Society of the Plastics 
Industry plastics resin identification code (``SPI code''). They 
noted that the SPI code is required by laws in thirty-nine states to 
be placed on plastic containers and that if the Commission advises 
that the use of the code is deceptive on products and requires that 
it be changed there will be a conflict.
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(e) International Developments Affecting the Guides

    A number of commenters noted that the International Standards 
Organization (ISO) is in the process of drafting standards for 
environmental labeling claims made by manufacturers and by third-party 
awarders of eco-seals. Some commenters encouraged the Commission to try 
to harmonize with ISO to ensure international uniformity. Other 
commenters noted that Canada, Japan, and a number of European countries 
have adopted official eco-seal programs to award seals to products they 
consider environmentally superior. Most commenters who referenced such 
programs view the use of some eco-seals, without further qualification, 
as potentially vague and exaggerated general environmental benefit 
claims. Several of these commenters stated that such seals may impose 
trade barriers because, in practice, they favor manufacturers in the 
country which awards the seal.

(f) Effect of the Guides in the Marketplace

    The Notice sought comment as to the extent to which the guides have 
reduced consumer skepticism about environmental claims, the degree of 
industry compliance with the guides, and the impact of the guides on 
the flow of information to consumers. Commenters who addressed the 
issue of consumer skepticism believe that it has lessened but continues 
to exist. Many commenters indicated their belief that there is general 
industry compliance with the guides. Some commenters, however, 
complained that there are still too many unqualified ``recyclable'' 
claims being made. Others were concerned by the number of broad, 
unqualified environmental benefit claims still in the marketplace, like 
``environmentally safe'' and ``environmentally friendly.'' There was 
general agreement that the number of environmental claims in the 
marketplace has not diminished, although certain claims, like 
degradable claims for products that are typically disposed of in 
landfills, are now rare. Although most commenters believe that the 
guides encourage the flow of useful information to consumers, several 
industry members complained that the guides reduce the flow of useful 
information by restricting their ability to make what they consider to 
be truthful ``recyclable'' claims. Furthermore, one trade association 
submitted a survey of its members in which 56% of those responding 
indicated that they thought that the guides had generally inhibited 
their use of environmental marketing claims.

(g) Specific Claims

    Over a dozen commenters urged the Commission to make no changes at 
all to the guides, while some opposed making specific changes that were 
recommended by other commenters. Many commenters asked that a few 
specific changes be made. Recyclability issues generated the most 
comments, including whether unqualified claims imply local and national 
availability of facilities to consumers; the adequacy of various 
qualifications suggested in the guides to convey the fact of limited 
availability of facilities for recycling many products; the meaning of 
``Please Recycle'' on package labels and whether the guides should 
address them; how consumers interpret the unqualified three chasing 
arrows symbol; and the guides' treatment of the Society of the Plastics 
Industry plastic resin identification code (SPI code). The other 
primary areas of discussion included whether ``no CFCs'' claims are 
deceptive for products that do not contain upper ozone depleters, but 
do contain volatile organic compounds (VOCs) which can contribute to 
smog, and whether the guides should require disclosures of post-
consumer recycled content for ``recycled'' claims. Several commenters 
discussed the issue of whether the guides should address claims based 
on ``lifecycle'' analysis and the use of environmental seals and 
certifications by marketers. A number of commenters suggested that 
additional claims be covered by the guides, including non-toxic claims, 
chlorine-free claims, and claims that a product is ``environmentally 
preferable.'' No commenter suggested that any of the eight specific 
categories of claims covered by the guides be dropped.

(h) Empirical Evidence

    The Notice solicited new evidence concerning consumer perception of 
environmental claims. Only a small amount of consumer research was 
submitted on how consumers perceive specific claims.

[[Page 53314]]

3. Request for Further Comment

    The Commission specifically sought comment as to whether consumers 
perceive that products made from reconditioned parts that would 
otherwise have been thrown away are ``recycled'' products, and what 
modifications, if any, should be made to the guides to address these 
consumer perceptions. The Commission received no empirical evidence in 
response to this request, but did receive several comments discussing 
this issue. The Commission has determined to give further consideration 
to this question, as well as to the related issue of whether product 
parts that can be reconditioned and/or reused in the manufacture of new 
products should be considered ``recyclable'' if adequate 
infrastructures for collecting the parts are available. The Commission 
is seeking consumer perception data on these issues, as well as further 
information responsive to the questions outlined below.
    The Recycled guide defines ``recycled content'' as material that a 
marketer can substantiate has been recovered or otherwise diverted from 
the waste stream. This could be interpreted to include products made 
from reconditioned and/or reused parts, as well as products made from 
recycled raw materials like steel from melted down cans. However, the 
Recyclable guide states further that for something to be recyclable it 
must be diverted from the solid waste stream for use as ``raw materials 
in the manufacture or assembly of a new product or package.'' 
Therefore, product parts that are capable of being reconditioned and/or 
reused in the manufacture of new products are not considered 
``recyclable'' under the guides, because the parts are not actually 
reprocessed into raw materials before reuse. In addition, products 
manufactured from such parts may not be considered ``recycled'' under 
the guides.
    The Commission is seeking comment and consumer perception data on 
whether product parts that can be reconditioned and/or reused in the 
manufacture of new products should be considered ``recyclable'' under 
the guides (assuming adequate infrastructures for collecting the parts 
are available), and on whether products manufactured from reconditioned 
and/or reused parts should be considered ``recycled.'' In addition, the 
Commission seeks comment on whether consumers perceive that the term 
``recycled'' conveys information about the quality of a product, and 
whether consumers' concerns about quality differ with respect to 
products made from reconditioned or reused parts and those made from 
recycled raw materials. The Commission also requests comment on whether 
consumer perception of a product being recycled would be affected if 
marketers of products made from reconditioned and/or reused parts could 
prove that the quality of those products is substantially equivalent to 
that of comparable products made from recycled raw materials.
    The Commission has received some consumer survey evidence on the 
issue of whether consumers consider products made from reconditioned 
parts to be ``recycled.'' This evidence is responsive to a question 
included in a survey conducted by the Council on Packaging in the 
Environment (COPE) in April 1996. The Commission is placing this survey 
evidence on the public record and seeks comment on it. The survey, 
including this evidence, is available for inspection and copying at the 
Federal Trade Commission, 6th and Pennsylvania Avenue, N.W., 
Washington, D.C., Room 130.
    The Commission also solicits public comment on the following 
questions relating to reconditioned and reused parts:
    1. Do consumers generally perceive that parts that can be taken 
from products for reconditioning and/or reuse in the manufacture of new 
products are ``recyclable''? Why or why not? Please provide any 
empirical data.
    2. Do consumers generally perceive that products manufactured from 
reconditioned and/or reused parts are ``recycled''? Why or why not? 
Please provide any empirical data.
    3. Do consumers generally perceive that the term ``recycled'' 
conveys information about the quality of a product? Do consumers' 
concerns about product quality differ with respect to whether a product 
is made from reconditioned and/or reused parts recovered from the solid 
waste stream or from raw materials like steel from melted cans 
recovered from the solid waste stream? Please provide any empirical 
data.
    4. Would consumer perception about whether a product is or is not 
``recycled'' be affected if marketers of products made from 
reconditioned and/or reused parts could prove that those products are 
``substantially equivalent'' in quality to comparable products made 
from recycled raw materials? If so, how? Please provide any empirical 
data.
    5. What evidence should be required to show that products 
containing reconditioned and/or reused parts are ``substantially 
equivalent'' in quality to comparable products made from recycled raw 
materials? Please provide any empirical data.
    6. Are consumers likely to be deceived about the quality of 
products made from reconditioned and/or reused parts if they are 
advertised as ``recycled''? If so, how should the Commission address 
this concern?
    7. What are the costs and benefits to consumers and to industry if:
    (a) Parts that can be taken from products for reconditioning and/or 
reuse in the manufacture of new products are marketed as 
``recyclable''? or
    (b) Products manufactured from reconditioned and/or reused parts 
are marketed as ``recycled'' products? Please provide any empirical 
data.

4. Modifications to the Guides

    After careful review of the comments and the discussion at the 
Public Workshop-Conference, the Commission has determined to make 
modifications to the General Environmental Benefit Claims guide, the 
Degradable/Biodegradable/Photodegradable guide, the Recycled Content 
guide and the Ozone Safe/Ozone Friendly guide. Some modifications have 
also been made in the prefatory sections. The changes have been made to 
ensure that the guides continue to reflect current technology and 
changing consumer perception, as well as to address newer environmental 
claims in the marketplace that the Commission believes have been, or 
could be, used in a deceptive manner.6 In deciding whether to 
modify the guides, the Commission analyzed what the covered claims 
convey to consumers, and the extent to which available empirical 
evidence indicates that consumer perception of particular claims has 
changed. Some changes were also made for purposes of clarification.
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    \6\ No changes have been made to the Source Reduction guide or 
the Refillable guide.
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    The Commission is still in the process of reviewing the Recyclable 
and Compostable guides and will not reissue them until it evaluates the 
results of ongoing consumer research. One purpose of this research is 
to examine whether these claims continue to imply that consumers can 
recycle or compost the advertised product in their own area. The 
research will be placed on the public record when it is completed. The 
current Recyclable and Compostable guides, codified at 16 C.F.R. 260.7 
(c)-(d) (1996), remain in effect until the Commission completes its 
evaluation. While the review of these two guides continues, the 
Commission seeks the submission of any further empirical data on 
consumers' understanding and

[[Page 53315]]

perceptions of ``recyclable'' and ``compostable'' claims. Additional 
data may be filed with the Secretary of the Commission in the manner 
noted above.
    Changes to the guides are as follows:
    (a) Modifications to the Prefatory Sections.
    (i) Review Procedure.
    The Commission has updated the section on the review procedure for 
the guides. This section now states that the Environmental Marketing 
Guides will be reviewed in the future as part of the Commission's 
general program of reviewing all industry guides on an ongoing basis. 
The provision permitting parties to petition the Commission to amend 
the guides in light of substantial new evidence has not been changed.
    (ii) Interpretation and Substantiation of Environmental Marketing 
Claims.
    The definition of ``competent and reliable scientific evidence'' 
has been clarified and is now consistent with the language used in 
recent Commission consent orders. Such evidence is now defined as 
``tests, analyses, research, studies or other evidence based on the 
expertise of professionals in the relevant area, that has been 
conducted and evaluated in an objective manner by persons qualified to 
do so, using procedures generally accepted in the profession to yield 
accurate and reliable results.''
    (iii) General Principles.
    The Commission has added a new example to this section under the 
subsection Overstatement of An Environmental Benefit. This example is 
based on the consent agreement in the Mr. Coffee, Inc. case,7 
where the Commission challenged a ``chlorine-free process'' claim for 
paper coffee filters that, while not bleached with elemental chlorine, 
had been bleached in a new process with a chlorine compound. The 
Commission alleged that the new bleaching process contained some 
elemental chlorine which continued to release a significant amount of 
the environmentally harmful dioxins and furans associated with 
elemental chlorine bleaching, though in lesser amounts. The example 
explains that a ``chlorine-free process'' claim is likely to overstate 
the environmental benefit provided by a product if the manufacturing 
process continues to release into the environment a significant, even 
if reduced, amount of the same harmful byproducts associated with 
chlorine bleaching. The example illustrates one possible way to make 
substantiated claims of this nature, i.e., that the filters are 
bleached with a process that ``substantially reduces, but does not 
eliminate, harmful substances associated with chlorine bleaching.''
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    \7\ Mr. Coffee, Inc., Docket C-3486 (March 25, 1994).
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    (iv) Preamble to Environmental Marketing Claims Section.
    The footnote on lifecycle claims stated that the guides do not 
address claims based on a ``lifecycle'' theory of environmental benefit 
because such analyses are still in their infancy, and the Commission 
lacks sufficient information on which to base guidance. The Commission 
continues to lack sufficient information to provide guidance on these 
claims; however, it is no longer accurate to continue to characterize 
``lifecycle'' analyses as being in their ``infancy.'' The footnote has 
been modified to state that the guides do not currently address these 
types of claims, because the Commission lacks sufficient information on 
which to base guidance.
    (b) General Environmental Benefit Claims Guide.
    Three new examples have been added to this guide. One illustrates 
that in some contexts, a ``non-toxic'' claim may convey to consumers 
that a product does not pose any risk to human health or the 
environment, and that the claim would be deceptive if the product does, 
in fact, pose a significant risk to either human health or the 
environment. This example is based on the Orkin Exterminating Company, 
Inc. and Safe Brands Corp., et al. cases.8 In Orkin, the 
Commission alleged that the company had made unsubstantiated 
``practically non-toxic'' claims for lawn care pesticide products which 
implied that the products did not pose any significant risk to human 
health or the environment. In Safe Brands, the Commission charged that 
advertisements for a propylene glycol-based antifreeze product, which 
included claims that the product was ``essentially non-toxic'' and 
``the ultimate in * * * environmental safety,'' implied that the 
product was absolutely safe for people, pets and the environment. The 
example states that phrases like ``essentially non-toxic'' and 
``practically non-toxic'' can convey absolute claims of safety both to 
health and to the environment when used to advertise products such as 
lawn care pesticides and antifreeze. The example states that such 
claims are deceptive if the product does, in fact, pose a significant 
risk to human health or the environment.
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    \8\ Orkin Exterminating Company, Inc., Docket C-3495 (May 25, 
1994); Safe Brands Corp., et al., Docket C-3647 (March 26, 1996).
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    The other new examples address ``seal of approval'' and 
``environmentally preferable'' claims. Several commenters noted that 
when environmental seals of approval are found on product labels, they 
have been placed there to indicate that the products are 
environmentally superior to others. Based on these comments, the 
Commission believes that consumers would interpret environmental seals 
of approval that are not accompanied by qualifying text to mean that 
the product is environmentally superior to other products. The 
Commission also believes that unqualified ``environmentally 
preferable'' claims are likely to convey broad messages of 
environmental superiority to consumers.
    The example on ``seal of approval'' claims states that the use of 
an environmental seal with no textual qualification, or inadequate 
qualification, is likely to convey to consumers that the product is 
environmentally superior to other products. Therefore, if the 
manufacturer cannot substantiate this broad claim of environmental 
superiority, the claim is likely to be deceptive. The claim would not 
be deceptive, however, if the manufacturer qualified it with clear and 
prominent language limiting the superiority representation to the 
particular product attribute or attributes for which the claim of 
environmental superiority could be substantiated, provided that no 
other deceptive implications were created by the context. The new 
example addressing ``environmentally preferable'' claims states 
similarly that the term is likely to convey a broad claim of 
environmental superiority to consumers, which must be substantiated or 
adequately qualified.
    (c) Degradable/Biodegradable/Photodegradable Guide.
    A new example has been added to address concerns raised about a 
possible conflict between the degradable guide and the requirements of 
federal and state laws concerning performance standards for 
photodegradability of certain products. The example states that 
symbols, such as a diamond logo, that are required by some state laws 
to appear on certain photodegradable plastics to indicate that they 
meet performance standards to ensure they will photodegrade if 
littered, do not constitute claims of degradability. A footnote has 
also been added to clarify that the guides' treatment of degradable 
claims is intended to help prevent consumer deception and is not 
intended to establish performance standards for laws intended to ensure 
that products degrade when littered so as to a avoid a potential hazard 
to wildlife.
    (d) Recycled Content Guide.

[[Page 53316]]

    Several examples have been amended for purposes of clarification 
and one new example has been added to this Guide. The new example 
addresses the use of the ``three chasing arrows'' symbol without any 
textual qualification. Consumer perception data 9 indicates that 
the use of the three chasing arrows symbol by itself conveys to 
consumers that a product is made entirely from recycled material and 
that it is recyclable. The new example provides that if a marketer of a 
product bearing the three chasing arrows symbol without qualification 
cannot substantiate both of these claims, it should qualify the claim 
to indicate whether the symbol refers to the recyclability and/or 
recycled content of the product. The example states that further 
qualification of these claims may be necessary. For instance, a 
recycled content claim should also disclose the percentage of recycled 
content, if that amount is less than 100%.
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    \9\ See ``Public Understanding of the Chasing Arrows Symbol and 
Recycled Content Claims,'' conducted for the Paper Recycling 
Coalition and placed on the public record on July 28, 1995.
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    Modifications have been made to several examples in the Recycled 
Content guide for purposes of consistency and clarification. Example 1 
has been modified to eliminate the reference to scraps from ``trimming 
finished products'' in the description of materials that do not qualify 
as pre-consumer recycled material, i.e., those manufacturing byproducts 
that are normally reused by industry in the original manufacturing 
process after only minimal reprocessing. The phrase scraps from 
``trimming finished products'' could be misinterpreted to mean that 
scraps or trimmings from finished paper products, which require 
significant reprocessing before they can be used again in the 
manufacture of other paper products, do not qualify as pre-consumer 
recycled material. The new example, therefore, deletes the reference to 
scraps from ``trimming finished products.''
    In addition, modifications have been made to Examples 3, 4 and 9 to 
make them consistent with Example 7. Example 7 permits recycled content 
claims for paper to be made on a fiber weight basis (i.e., stated as 
``contains X% recycled fiber''), whereas Examples 3, 4 and 9 contain 
language in which the recycled content of a paper product is expressed 
as a percentage of the total weight of the paper. EPA regulations 
regarding federal government procurement of recycled content paper 
products use the ``fiber weight'' standard,10 as do a number of 
state procurement laws. To promote consistency and eliminate any 
possible ambiguity, the hypothetical claims in Examples 3, 4 and 9 are 
now expressed in terms of a fiber weight, rather than total weight 
basis.
---------------------------------------------------------------------------

    \10\ See 61 FR 26986 (May 29, 1996).
---------------------------------------------------------------------------

    (e) Ozone Safe and Ozone Friendly Guide.
    The Ozone Safe/Ozone Friendly guide has been modified to state, not 
only that it is deceptive to misrepresent that a product is safe or 
``friendly'' to the ozone layer, but also that it is deceptive to 
misrepresent that a product is safe or ``friendly'' to the atmosphere. 
In addition, an example has been added to the guide to illustrate that 
a claim such as ``ozone friendly'' conveys to consumers that a product 
is harmless not only to the upper ozone layer but to the atmosphere as 
a whole. Such claims are, therefore, deceptive for products that 
contain volatile organic compounds (VOCs), ingredients that can 
contribute to ground level ozone, a component of smog. This additional 
example is based on consumer perception data obtained by the Commission 
since the guides were issued.11 These data indicate that consumers 
interpret an ``Ozone Friendly'' claim to mean that a product does not 
contribute to smog or air pollution generally, and is safe for the 
atmosphere as whole.
---------------------------------------------------------------------------

    \11\ See Maronick and Andrews, ``Consumers' Interpretations of 
Environmental Claims,'' March 10, 1993, placed on the public record 
with the Request for Comment on July 28, 1995.
---------------------------------------------------------------------------

    A change has also been made to Example 1 of the Ozone Safe/Ozone 
Friendly guide. This example lists certain chemicals that are 
classified as ``Class I'' ozone depleters in Title VI of the Clean Air 
Act Amendments of 1990.12 The Amendments grant EPA the authority 
to designate other chemicals as ozone depleters. Since the guides were 
issued in 1992, EPA has designated two additional chemicals, methyl 
bromide and hydrobromofluorocarbons (HBFCs) as Class I ozone depleters. 
These two chemicals have now been added to the list of Class I ozone 
depleters in Example 1.
---------------------------------------------------------------------------

    \12\ 42 U.S.C. 7671 et seq.
---------------------------------------------------------------------------

5. Text of Modified Guides

List of Subjects in 16 CFR Part 260

    Advertising, Environmental protection, Labeling, Trade practices.

    For the reasons set forth in the preamble, 16 CFR Part 260 is 
amended by revising sections 260.1 through 260.6, 260.7 (a) and (b), 
260.7 (e) through (h), and 260.8 to read as follows:

PART 260--GUIDES FOR THE USE OF ENVIRONMENTAL MARKETING CLAIMS

Sec.
260.1  Statement of purpose.
260.2  Scope of guides.
260.3  Structure of the guides.
260.4  Review procedure.
260.5  Interpretation and substantiation of environmental marketing 
claims.
260.6  General principles.
260.7  Environmental marketing claims.
260.8  Environmental assessment.

    Authority: 15 U.S.C. 41-58.


Sec. 260.1   Statement of purpose.

    The guides in this part represent administrative interpretations of 
laws administered by the Federal Trade Commission for the guidance of 
the public in conducting its affairs in conformity with legal 
requirements. These guides specifically address the application of 
Section 5 of the FTC Act to environmental advertising and marketing 
practices. They provide the basis for voluntary compliance with such 
laws by members of industry. Conduct inconsistent with the positions 
articulated in these guides may result in corrective action by the 
Commission under Section 5 if, after investigation, the Commission has 
reason to believe that the behavior falls within the scope of conduct 
declared unlawful by the statute.


Sec. 260.2   Scope of guides.

    These guides apply to environmental claims included in labeling, 
advertising, promotional materials and all other forms of marketing, 
whether asserted directly or by implication, through words, symbols, 
emblems, logos, depictions, product brand names, or through any other 
means. The guides apply to any claim about the environmental attributes 
of a product or package in connection with the sale, offering for sale, 
or marketing of such product or package for personal, family or 
household use, or for commercial, institutional or industrial use.
    Because the guides are not legislative rules under Section 18 of 
the FTC Act, they are not themselves enforceable regulations, nor do 
they have the force and effect of law. The guides themselves do not 
preempt regulation of other federal agencies or of state and local 
bodies governing the use of environmental marketing claims. Compliance 
with federal, state or local law and regulations concerning such 
claims, however, will not necessarily

[[Page 53317]]

preclude Commission law enforcement action under Section 5.


Sec. 260.3   Structure of the guides.

    The guides are composed of general principles and specific guidance 
on the use of environmental claims. These general principles and 
specific guidance are followed by examples that generally address a 
single deception concern. A given claim may raise issues that are 
addressed under more than one example and in more than one section of 
the guides. In many of the examples, one or more options are presented 
for qualifying a claim. These options are intended to provide a ``safe 
harbor'' for marketers who want certainty about how to make 
environmental claims. They do not represent the only permissible 
approaches to qualifying a claim. The examples do not illustrate all 
possible acceptable claims or disclosures that would be permissible 
under Section 5. In addition, some of the illustrative disclosures may 
be appropriate for use on labels but not in print or broadcast 
advertisements and vice versa. In some instances, the guides indicate 
within the example in what context or contexts a particular type of 
disclosure should be considered.


Sec. 260.4   Review procedure.

    The Commission will review the guides as part of its general 
program of reviewing all industry guides on an ongoing basis. Parties 
may petition the Commission to alter or amend these guides in light of 
substantial new evidence regarding consumer interpretation of a claim 
or regarding substantiation of a claim. Following review of such a 
petition, the Commission will take such action as it deems appropriate.


Sec. 260.5   Interpretation and substantiation of environmental 
marketing claims.

    Section 5 of the FTC Act makes unlawful deceptive acts and 
practices in or affecting commerce. The Commission's criteria for 
determining whether an express or implied claim has been made are 
enunciated in the Commission's Policy Statement on Deception.13 In 
addition, any party making an express or implied claim that presents an 
objective assertion about the environmental attribute of a product or 
package must, at the time the claim is made, possess and rely upon a 
reasonable basis substantiating the claim. A reasonable basis consists 
of competent and reliable evidence. In the context of environmental 
marketing claims, such substantiation will often require competent and 
reliable scientific evidence, defined as tests, analyses, research, 
studies or other evidence based on the expertise of professionals in 
the relevant area, conducted and evaluated in an objective manner by 
persons qualified to do so, using procedures generally accepted in the 
profession to yield accurate and reliable results. Further guidance on 
the reasonable basis standard is set forth in the Commission's 1983 
Policy Statement on the Advertising Substantiation Doctrine. 49 FR 
30999 (August 2, 1984); appended to Thompson Medical Co., 104 F.T.C. 
648 (1984). The Commission has also taken action in a number of cases 
involving alleged deceptive or unsubstantiated environmental 
advertising claims. A current list of environmental marketing cases 
and/or copies of individual cases can be obtained by calling the FTC 
Public Reference Branch at (202) 326-2222.
---------------------------------------------------------------------------

    \13\ Cliffdale Associates, Inc., 103 F.T.C. 110, at 176, 176 
n.7, n.8, Appendix, reprinting letter dated Oct. 14, 1983, from the 
Commission to The Honorable John D. Dingell, Chairman, Committee on 
Energy and Commerce, U.S. House of Representatives (1984) 
(``Deception Statement'').
---------------------------------------------------------------------------


Sec. 260.6   General principles.

    The following general principles apply to all environmental 
marketing claims, including, but not limited to, those described in 
Sec. 260.7. In addition, Sec. 260.7 contains specific guidance 
applicable to certain environmental marketing claims. Claims should 
comport with all relevant provisions of these guides, not simply the 
provision that seems most directly applicable.
    (a) Qualifications and disclosures: The Commission traditionally 
has held that in order to be effective, any qualifications or 
disclosures such as those described in the guides in this part should 
be sufficiently clear and prominent to prevent deception. Clarity of 
language, relative type size and proximity to the claim being 
qualified, and an absence of contrary claims that could undercut 
effectiveness, will maximize the likelihood that the qualifications and 
disclosures are appropriately clear and prominent.
    (b) Distinction between benefits of product and package: An 
environmental marketing claim should be presented in a way that makes 
clear whether the environmental attribute or benefit being asserted 
refers to the product, the product's packaging or to a portion or 
component of the product or packaging. In general, if the environmental 
attribute or benefit applies to all but minor, incidental components of 
a product or package, the claim need not be qualified to identify that 
fact. There may be exceptions to this general principle. For example, 
if an unqualified ``recyclable'' claim is made and the presence of the 
incidental component significantly limits the ability to recycle the 
product, then the claim would be deceptive.

    Example 1: A box of aluminum foil is labeled with the claim 
``recyclable,'' without further elaboration. Unless the type of 
product, surrounding language, or other context of the phrase 
establishes whether the claim refers to the foil or the box, the 
claim is deceptive if any part of either the box or the foil, other 
than minor, incidental components, cannot be recycled.
    Example 2: A soft drink bottle is labeled ``recycled.'' The 
bottle is made entirely from recycled materials, but the bottle cap 
is not. Because reasonable consumers are likely to consider the 
bottle cap to be a minor, incidental component of the package, the 
claim is not deceptive. Similarly, it would not be deceptive to 
label a shopping bag ``recycled'' where the bag is made entirely of 
recycled material but the easily detachable handle, an incidental 
component, is not.

    (c) Overstatement of environmental attribute: An environmental 
marketing claim should not be presented in a manner that overstates the 
environmental attribute or benefit, expressly or by implication. 
Marketers should avoid implications of significant environmental 
benefits if the benefit is in fact negligible.

    Example 1: A package is labeled, ``50% more recycled content 
than before.'' The manufacturer increased the recycled content of 
its package from 2 percent recycled material to 3 percent recycled 
material. Although the claim is technically true, it is likely to 
convey the false impression that the advertiser has increased 
significantly the use of recycled material.
    Example 2: A trash bag is labeled ``recyclable'' without 
qualification. Because trash bags will ordinarily not be separated 
out from other trash at the landfill or incinerator for recycling, 
they are highly unlikely to be used again for any purpose. Even if 
the bag is technically capable of being recycled, the claim is 
deceptive since it asserts an environmental benefit where no 
significant or meaningful benefit exists.
    Example 3: A paper grocery sack is labeled ``reusable.'' The 
sack can be brought back to the store and reused for carrying 
groceries but will fall apart after two or three reuses, on average. 
Because reasonable consumers are unlikely to assume that a paper 
grocery sack is durable, the unqualified claim does not overstate 
the environmental benefit conveyed to consumers. The claim is not 
deceptive and does not need to be qualified to indicate the limited 
reuse of the sack.
    Example 4: A package of paper coffee filters is labeled ``These 
filters were made with a chlorine-free bleaching process.'' The 
filters are bleached with a process that releases into the 
environment a reduced, but still significant, amount of the same 
harmful byproducts associated with chlorine bleaching. The claim is 
likely to overstate the product's benefits because it is likely to 
be

[[Page 53318]]

interpreted by consumers to mean that the product's manufacture does 
not cause any of the environmental risks posed by chlorine 
bleaching. A claim, however, that the filters were ``bleached with a 
process that substantially reduces, but does not eliminate, harmful 
substances associated with chlorine bleaching'' would not, if 
substantiated, overstate the product's benefits and is unlikely to 
be deceptive.

    (d) Comparative claims: Environmental marketing claims that include 
a comparative statement should be presented in a manner that makes the 
basis for the comparison sufficiently clear to avoid consumer 
deception. In addition, the advertiser should be able to substantiate 
the comparison.

    Example 1: An advertiser notes that its shampoo bottle contains 
``20% more recycled content.'' The claim in its context is 
ambiguous. Depending on contextual factors, it could be a comparison 
either to the advertiser's immediately preceding product or to a 
competitor's product. The advertiser should clarify the claim to 
make the basis for comparison clear, for example, by saying ``20% 
more recycled content than our previous package.'' Otherwise, the 
advertiser should be prepared to substantiate whatever comparison is 
conveyed to reasonable consumers.
    Example 2: An advertiser claims that ``our plastic diaper liner 
has the most recycled content.'' The advertised diaper does have 
more recycled content, calculated as a percentage of weight, than 
any other on the market, although it is still well under 100% 
recycled. Provided the recycled content and the comparative 
difference between the product and those of competitors are 
significant and provided the specific comparison can be 
substantiated, the claim is not deceptive.
    Example 3: An ad claims that the advertiser's packaging creates 
``less waste than the leading national brand.'' The advertiser's 
source reduction was implemented sometime ago and is supported by a 
calculation comparing the relative solid waste contributions of the 
two packages. The advertiser should be able to substantiate that the 
comparison remains accurate.


Sec. 260.7  Environmental marketing claims.

    Guidance about the use of environmental marketing claims is set 
forth in this section. Each guide is followed by several examples that 
illustrate, but do not provide an exhaustive list of, claims that do 
and do not comport with the guides. In each case, the general 
principles set forth in Sec. 260.6 should also be followed.14
---------------------------------------------------------------------------

    \14\  These guides do not currently address claims based on a 
``lifecycle'' theory of environmental benefit. The Commission lacks 
sufficient information on which to base guidance on such claims.
---------------------------------------------------------------------------

    (a) General environmental benefit claims: It is deceptive to 
misrepresent, directly or by implication, that a product or package 
offers a general environmental benefit. Unqualified general claims of 
environmental benefit are difficult to interpret, and depending on 
their context, may convey a wide range of meanings to consumers. In 
many cases, such claims may convey that the product or package has 
specific and far-reaching environmental benefits. As explained in the 
Commission's Ad Substantiation Statement, every express and material, 
implied claim that the general assertion conveys to reasonable 
consumers about an objective quality, feature or attribute of a product 
must be substantiated. Unless this substantiation duty can be met, 
broad environmental claims should either be avoided or qualified, as 
necessary, to prevent deception about the specific nature of the 
environmental benefit being asserted.

    Example 1: A brand name like ``Eco-Safe'' would be deceptive if, 
in the context of the product so named, it leads consumers to 
believe that the product has environmental benefits which cannot be 
substantiated by the manufacturer. The claim would not be deceptive 
if ``Eco-Safe'' were followed by clear and prominent qualifying 
language limiting the safety representation to a particular product 
attribute for which it could be substantiated, and provided that no 
other deceptive implications were created by the context.
    Example 2: A product wrapper is printed with the claim 
``Environmentally Friendly.'' Textual comments on the wrapper 
explain that the wrapper is ``Environmentally Friendly because it 
was not chlorine bleached, a process that has been shown to create 
harmful substances.'' The wrapper was, in fact, not bleached with 
chlorine. However, the production of the wrapper now creates and 
releases to the environment significant quantities of other harmful 
substances. Since consumers are likely to interpret the 
``Environmentally Friendly'' claim, in combination with the textual 
explanation, to mean that no significant harmful substances are 
currently released to the environment, the ``Environmentally 
Friendly'' claim would be deceptive.
    Example 3: A pump spray product is labeled ``environmentally 
safe.'' Most of the product's active ingredients consist of volatile 
organic compounds (VOCs) that may cause smog by contributing to 
ground-level ozone formation. The claim is deceptive because, absent 
further qualification, it is likely to convey to consumers that use 
of the product will not result in air pollution or other harm to the 
environment.
    Example 4: A lawn care pesticide is advertised as ``essentially 
non-toxic'' and ``practically non-toxic.'' Consumers would likely 
interpret these claims in the context of such a product as applying 
not only to human health effects but also to the product's 
environmental effects. Since the claims would likely convey to 
consumers that the product does not pose any risk to humans or the 
environment, if the pesticide in fact poses a significant risk to 
humans or environment, the claims would be deceptive.
    Example 5: A product label contains an environmental seal, 
either in the form of a globe icon, or a globe icon with only the 
text ``Earth Smart'' around it. Either label is likely to convey to 
consumers that the product is environmentally superior to other 
products. If the manufacturer cannot substantiate this broad claim, 
the claim would be deceptive. The claims would not be deceptive if 
they were accompanied by clear and prominent qualifying language 
limiting the environmental superiority representation to the 
particular product attribute or attributes for which they could be 
substantiated, provided that no other deceptive implications were 
created by the context.
    Example 6: A product is advertised as ``environmentally 
preferable.'' This claim is likely to convey to consumers that this 
product is environmentally superior to other products. If the 
manufacturer cannot substantiate this broad claim, the claim would 
be deceptive. The claim would not be deceptive if it were 
accompanied by clear and prominent qualifying language limiting the 
environmental superiority representation to the particular product 
attribute or attributes for which it could be substantiated, 
provided that no other deceptive implications were created by the 
context.

    (b) Degradable/biodegradable/photodegradable: It is deceptive to 
misrepresent, directly or by implication, that a product or package is 
degradable, biodegradable or photodegradable. An unqualified claim that 
a product or package is degradable, biodegradable or photodegradable 
should be substantiated by competent and reliable scientific evidence 
that the entire product or package will completely break down and 
return to nature, i.e., decompose into elements found in nature within 
a reasonably short period of time after customary disposal. Claims of 
degradability, biodegradability or photodegradability should be 
qualified to the extent necessary to avoid consumer deception about:
     (1) The product or package's ability to degrade in the environment 
where it is customarily disposed; and
    (2) The rate and extent of degradation.

    Example 1: A trash bag is marketed as ``degradable,'' with no 
qualification or other disclosure. The marketer relies on soil 
burial tests to show that the product will decompose in the presence 
of water and oxygen. The trash bags are customarily disposed of in 
incineration facilities or at sanitary landfills that are managed in 
a way that inhibits degradation by minimizing moisture and oxygen. 
Degradation will be irrelevant for those trash bags that are 
incinerated and, for those disposed of in landfills, the marketer 
does not possess adequate substantiation that the bags will degrade 
in a reasonably short period of time in a landfill. The claim is 
therefore deceptive.
    Example 2: A commercial agricultural plastic mulch film is 
advertised as

[[Page 53319]]

``Photodegradable'' and qualified with the phrase, ``Will break down 
into small pieces if left uncovered in sunlight.'' The claim is 
supported by competent and reliable scientific evidence that the 
product will break down in a reasonably short period of time after 
being exposed to sunlight and into sufficiently small pieces to 
become part of the soil. The qualified claim is not deceptive. 
Because the claim is qualified to indicate the limited extent of 
breakdown, the advertiser need not meet the elements for an 
unqualified photodegradable claim, i.e., that the product will not 
only break down, but also will decompose into elements found in 
nature.
    Example 3: A soap or shampoo product is advertised as 
``biodegradable,'' with no qualification or other disclosure. The 
manufacturer has competent and reliable scientific evidence 
demonstrating that the product, which is customarily disposed of in 
sewage systems, will break down and decompose into elements found in 
nature in a short period of time. The claim is not deceptive.
    Example 4: A plastic six-pack ring carrier is marked with a 
small diamond. Many state laws require that plastic six-pack ring 
carriers degrade if littered, and several state laws also require 
that the carriers be marked with a small diamond symbol to indicate 
that they meet performance standards for degradability. The use of 
the diamond, by itself, does not constitute a claim of 
degradability.15

    \15\ The guides' treatment of unqualified degradable claims is 
intended to help prevent consumer deception and is not intended to 
establish performance standards for laws intended to ensure the 
degradability of products when littered.
---------------------------------------------------------------------------

    (c) * * *
    (d) * * *
    (e) Recycled content: A recycled content claim may be made only for 
materials that have been recovered or otherwise diverted from the solid 
waste stream, either during the manufacturing process (pre-consumer), 
or after consumer use (post-consumer). To the extent the source of 
recycled content includes pre-consumer material, the manufacturer or 
advertiser must have substantiation for concluding that the pre-
consumer material would otherwise have entered the solid waste stream. 
In asserting a recycled content claim, distinctions may be made between 
pre-consumer and post-consumer materials. Where such distinctions are 
asserted, any express or implied claim about the specific pre-consumer 
or post-consumer content of a product or package must be substantiated. 
It is deceptive to misrepresent, directly or by implication, that a 
product or package is made of recycled material. Unqualified claims of 
recycled content may be made only if the entire product or package, 
excluding minor, incidental components, is made from recycled material. 
For products or packages that are only partially made of recycled 
material, a recycled claim should be adequately qualified to avoid 
consumer deception about the amount, by weight, of recycled content in 
the finished product or package.

    Example 1: A manufacturer routinely collects spilled raw 
material and scraps left over from the original manufacturing 
process. After a minimal amount of reprocessing, the manufacturer 
combines the spills and scraps with virgin material for use in 
further production of the same product. A claim that the product 
contains recycled material is deceptive since the spills and scraps 
to which the claim refers are normally reused by industry within the 
original manufacturing process, and would not normally have entered 
the waste stream.
    Example 2: A manufacturer purchases material from a firm that 
collects discarded material from other manufacturers and resells it. 
All of the material was diverted from the solid waste stream and is 
not normally reused by industry within the original manufacturing 
process. The manufacturer includes the weight of this material in 
its calculations of the recycled content of its products. A claim of 
recycled content based on this calculation is not deceptive because, 
absent the purchase and reuse of this material, it would have 
entered the waste stream.
    Example 3: A greeting card is composed 30% by fiber weight of 
paper collected from consumers after use of a paper product, and 20% 
by fiber weight of paper that was generated after completion of the 
paper-making process, diverted from the solid waste stream, and 
otherwise would not normally have been reused in the original 
manufacturing process. The marketer of the card may claim either 
that the product ``contains 50% recycled fiber,'' or may identify 
the specific pre-consumer and/or post-consumer content by stating, 
for example, that the product ``contains 50% total recycled fiber, 
including 30% post-consumer.''
    Example 4: A paperboard package with 20% recycled fiber by 
weight is labeled as containing ``20% recycled fiber.'' Some of the 
recycled content was composed of material collected from consumers 
after use of the original product. The rest was composed of overrun 
newspaper stock never sold to customers. The claim is not deceptive.
    Example 5: A product in a multi-component package, such as a 
paperboard box in a shrink-wrapped plastic cover, indicates that it 
has recycled packaging. The paperboard box is made entirely of 
recycled material, but the plastic cover is not. The claim is 
deceptive since, without qualification, it suggests that both 
components are recycled. A claim limited to the paperboard box would 
not be deceptive.
    Example 6: A package is made from layers of foil, plastic, and 
paper laminated together, although the layers are indistinguishable 
to consumers. The label claims that ``one of the three layers of 
this package is made of recycled plastic.'' The plastic layer is 
made entirely of recycled plastic. The claim is not deceptive 
provided the recycled plastic layer constitutes a significant 
component of the entire package.
    Example 7: A paper product is labeled as containing ``100% 
recycled fiber.'' The claim is not deceptive if the advertiser can 
substantiate the conclusion that 100% by weight of the fiber in the 
finished product is recycled.
    Example 8: A frozen dinner is marketed in a package composed of 
a cardboard box over a plastic tray. The package bears the legend, 
``package made from 30% recycled material.'' Each packaging 
component amounts to one-half the weight of the total package. The 
box is 20% recycled content by weight, while the plastic tray is 40% 
recycled content by weight. The claim is not deceptive, since the 
average amount of recycled material is 30%.
    Example 9: A paper greeting card is labeled as containing 50% 
recycled fiber. The seller purchases paper stock from several 
sources and the amount of recycled fiber in the stock provided by 
each source varies. Because the 50% figure is based on the annual 
weighted average of recycled material purchased from the sources 
after accounting for fiber loss during the production process, the 
claim is permissible.
    Example 10: A packaged food product is labeled with a three 
chasing arrows symbol without any further explanatory text as to its 
meaning. By itself, the symbol is likely to convey that the 
packaging is both ``recyclable'' and is made entirely from recycled 
material. Unless both messages can be substantiated, the claim 
should be qualified as to whether it refers to the package's 
recyclability and/or its recycled content. If a ``recyclable claim'' 
is being made, the label may need to disclose the limited 
availability of recycling programs for the package. If a recycled 
content claim is being made and the packaging is not made entirely 
from recycled material, the label should disclose the percentage of 
recycled content.

    (f) Source reduction: It is deceptive to misrepresent, directly or 
by implication, that a product or package has been reduced or is lower 
in weight, volume or toxicity. Source reduction claims should be 
qualified to the extent necessary to avoid consumer deception about the 
amount of the source reduction and about the basis for any comparison 
asserted.

    Example 1: An ad claims that solid waste created by disposal of 
the advertiser's packaging is ``now 10% less than our previous 
package.'' The claim is not deceptive if the advertiser has 
substantiation that shows that disposal of the current package 
contributes 10% less waste by weight or volume to the solid waste 
stream when compared with the immediately preceding version of the 
package.
    Example 2: An advertiser notes that disposal of its product 
generates ``10% less waste.'' The claim is ambiguous. Depending on 
contextual factors, it could be a comparison either to the 
immediately preceding product or to a competitor's product. The 
``10% less waste'' reference is deceptive unless the seller 
clarifies which comparison is intended and substantiates that 
comparison, or substantiates both possible interpretations of the 
claim.


[[Page 53320]]


    (g) Refillable: It is deceptive to misrepresent, directly or by 
implication, that a package is refillable. An unqualified refillable 
claim should not be asserted unless a system is provided for the 
collection and return of the package for refill or the later refill of 
the package by consumers with product subsequently sold in another 
package. A package should not be marketed with an unqualified 
refillable claim, if it is up to the consumer to find new ways to 
refill the package.

    Example 1: A container is labeled ``refillable x times.'' The 
manufacturer has the capability to refill returned containers and 
can show that the container will withstand being refilled at least x 
times. The manufacturer, however, has established no collection 
program. The unqualified claim is deceptive because there is no 
means for collection and return of the container to the manufacturer 
for refill.
    Example 2: A bottle of fabric softener states that it is in a 
``handy refillable container.'' The manufacturer also sells a large-
sized container that indicates that the consumer is expected to use 
it to refill the smaller container. The manufacturer sells the 
large-sized container in the same market areas where it sells the 
small container. The claim is not deceptive because there is a means 
for consumers to refill the smaller container from larger containers 
of the same product.

    (h) Ozone safe and ozone friendly: It is deceptive to misrepresent, 
directly or by implication, that a product is safe for or ``friendly'' 
to the ozone layer or the atmosphere. For example, a claim that a 
product does not harm the ozone layer is deceptive if the product 
contains an ozone-depleting substance.

    Example 1: A product is labeled ``ozone friendly.'' The claim is 
deceptive if the product contains any ozone-depleting substance, 
including those substances listed as Class I or Class II chemicals 
in Title VI of the Clean Air Act Amendments of 1990, Public Law 101-
549, and others subsequently designated by EPA as ozone-depleting 
substances. Chemicals that have been listed or designated as Class I 
are chlorofluorocarbons (CFCs), halons, carbon tetrachloride, 1,1,1-
trichloroethane, methyl bromide and hydrobromofluorocarbons (HBFCs). 
Chemicals that have been listed as Class II are 
hydrochlorofluorocarbons (HCFCs).
    Example 2: An aerosol air freshener is labeled ``ozone 
friendly.'' Some of the product's ingredients are volatile organic 
compounds (VOCs) that may cause smog by contributing to ground-level 
ozone formation. The claim is likely to convey to consumers that the 
product is safe for the atmosphere as a whole, and is therefore, 
deceptive.
    Example 3: The seller of an aerosol product makes an unqualified 
claim that its product ``Contains no CFCs.'' Although the product 
does not contain CFCs, it does contain HCFC-22, another ozone 
depleting ingredient. Because the claim ``Contains no CFCs'' may 
imply to reasonable consumers that the product does not harm the 
ozone layer, the claim is deceptive.
    Example 4: A product is labeled ``This product is 95% less 
damaging to the ozone layer than past formulations that contained 
CFCs.'' The manufacturer has substituted HCFCs for CFC-12, and can 
substantiate that this substitution will result in 95% less ozone 
depletion. The qualified comparative claim is not likely to be 
deceptive.


Sec. 260.8   Environmental assessment.

    National Environmental Policy Act. In accordance with Sec. 1.83 of 
the FTC's Procedures and Rules of Practice \4\ and Sec. 1501.3 of the 
Council on Environmental Quality's regulations for implementing the 
procedural provisions of National Environmental Policy Act, 42 U.S.C. 
4321 et seq. (1969),\5\ the Commission prepared an environmental 
assessment when the guides were issued in July 1992 for purposes of 
providing sufficient evidence and analysis to determine whether issuing 
the Guides for the Use of Environmental Marketing Claims required 
preparation of an environmental impact statement or a finding of no 
significant impact. After careful study, the Commission concluded that 
issuance of the Guides would not have a significant impact on the 
environment and that any such impact ``would be so uncertain that 
environmental analysis would be based on speculation.'' \6\ The 
Commission concluded that an environmental impact statement was 
therefore not required. The Commission based its conclusions on the 
findings in the environmental assessment that issuance of the guides 
would have no quantifiable environmental impact because the guides are 
voluntary in nature, do not preempt inconsistent state laws, are based 
on the FTC's deception policy, and, when used in conjunction with the 
Commission's policy of case-by-case enforcement, are intended to aid 
compliance with section 5(a) of the FTC Act as that Act applies to 
environmental marketing claims.
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    \4\ 16 CFR 1.83.
    \5\ 40 CFR 1501.3.
    \6\ 16 CFR 1.83(a).
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    The Commission has concluded that modifications to the guides in 
this part will not have a significant effect on the environment, for 
the same reasons that the issuance of the original guides in 1992 was 
deemed not to have a significant effect on the environment. Therefore, 
the Commission concludes that an environmental impact statement is not 
required in conjunction with the 1996 modifications to the Guides for 
the Use of Environmental Marketing Claims.

    By direction of the Commission.
Donald S. Clark,
Secretary .
[FR Doc. 96-25938 Filed 10-10-96; 8:45 am]
BILLING CODE 6750-01-P