[Federal Register Volume 73, Number 42 (Monday, March 3, 2008)]
[Proposed Rules]
[Pages 11371-11375]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-3972]


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FEDERAL TRADE COMMISSION

16 CFR Part 260


Guides for the Use of Environmental Marketing Claims; The Green 
Guides and Packaging; Public Workshop

AGENCY: Federal Trade Commission.

ACTION: Announcement of public workshop; request for public comment.

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SUMMARY: The Federal Trade Commission (``FTC'' or ``Commission'') is 
planning to host a public workshop on April 30, 2008, to examine 
developments in green packaging claims and consumer perception of such 
claims. The workshop is a component of the Commission's regulatory 
review of the Guides for the Use of Environmental Marketing Claims, 
which was announced on November 26, 2007.

DATES: The workshop will be held on Wednesday, April 30, 2008, from 9 
AM to 5 PM at the FTC's Satellite Building Conference Center, located 
at 601 New Jersey Avenue, N.W., Washington, D.C. Any written comments 
in response to this Notice must be received by May 19, 2008.

[[Page 11372]]

REGISTRATION INFORMATION:

    The workshop is open to the public, and there is no fee for 
attendance. The FTC also plans to make this workshop available via 
webcast (see http://www.ftc.gov/bcp/workshops/packaging/index.html). 
For admittance to the Conference Center, all attendees will be required 
to show a valid photo identification such as a driver's license. The 
FTC will accept pre-registration for this workshop. Pre-registration is 
not necessary to attend, but is encouraged so that we may better plan 
this event. To pre-register, please email your name and affiliation to 
[email protected]. When you pre-register, we will collect 
your name, affiliation, and your email address. This information will 
be used to estimate how many people will attend. We may use your email 
address to contact you with information about the workshop.
    Under the Freedom of Information Act (``FOIA'') or other laws, we 
may be required to disclose to outside organizations the information 
you provide. For additional information, including routine uses 
permitted by the Privacy Act, see the Commission's Privacy Policy at 
www.ftc.gov/ftc/privacy.shtm. The FTC Act and other laws the Commission 
administers permit the collection of this contact information to 
consider and use for the above purposes.

WRITTEN AND ELECTRONIC COMMENTS:

    The submission of comments is not required for attendance at the 
workshop. If you wish to submit written or electronic comments to 
inform discussion at the workshop, such comments must be received by 
April11, 2008. All comments in response to this Notice must be 
submitted no later than May 19, 2008. Comments should refer to ``Green 
Packaging Workshop--Comment, Project No. P084200,'' to facilitate 
organization of comments. A comment filed in paper form should include 
this reference both in the text and on the envelope, and should be 
mailed or delivered to the following address: Federal Trade Commission/
Office of the Secretary, Room H-135 (Annex B), 600 Pennsylvania Avenue, 
N.W., Washington, D.C. 20580. Comments containing confidential material 
must be filed in paper form, must be clearly labeled ``Confidential,'' 
and must comply with Commission Rule 4.9(c).\1\ The FTC is requesting 
that any comment filed in paper form be sent by courier or overnight 
service, if possible, because postal mail in the Washington area and at 
the Commission is subject to delay due to heightened security 
precautions.
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    \1\ The comment must be accompanied by an explicit request for 
confidential treatment, including the factual and legal basis for 
the request, and must identify the specific portions of the comment 
to be withheld from the public record. The request will be granted 
or denied by the Commission's General Counsel, consistent with 
applicable law and the public interest. See Commission Rule 4.9(c), 
16 CFR 4.9(c).
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    Comments filed in electronic form should be submitted by following 
the instructions on the web-based form at https://secure.commentworks.com/ftc-packagingworkshop. To ensure that the 
Commission considers an electronic comment, you must file it on that 
web-based form. You also may visit http://www.regulations.gov to read 
this notice, and may file an electronic comment through that website. 
The Commission will consider all comments that www.regulations.gov 
forwards to it.
    The FTC Act and other laws the Commission administers permit the 
collection of public comments to consider and use in this proceeding as 
appropriate. The Commission will consider all timely and responsive 
public comments that it receives, whether filed in paper or electronic 
form. Comments received will be available to the public on the FTC 
website, to the extent practicable, at http://www.ftc.gov. As a matter 
of discretion, the FTC makes every effort to remove home contact 
information for individuals from the public comments it receives before 
placing those comments on the FTC website. To read our policy on how we 
handle the information you submit--including routine uses permitted by 
the Privacy Act--please review the FTC's privacy policy, at http://www.ftc.gov/ftc/privacy.shtm.

FOR FURTHER INFORMATION CONTACT: Janice Frankle, Attorney, 202-326-
2022, Laura Koss, Attorney, 202-326-2890, or Anne McCormick, Attorney, 
202-326-3583, Division of Enforcement, Bureau of Consumer Protection, 
Federal Trade Commission.

SUPPLEMENTARY INFORMATION:

I. Introduction

    FTC staff is planning to conduct a one-day workshop on April 30, 
2008, addressing environmental advertising claims regarding product 
packaging. The workshop will explore ``green'' packaging claims, 
consumer perception of these claims, and substantiation issues. The 
workshop is one component of the Commission's regulatory review of the 
Guides for the Use of Environmental Marketing Claims (``Green Guides'' 
or ``Guides''), 16 CFR Part 260, which the FTC announced on November 
26, 2007.\2\
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    \2\ The Federal Register Notice announcing this review is at 72 
FR 66091 (Nov. 27, 2007), and can be found at http://www.ftc.gov/os/2007/11/P954501ggfrn.pdf. The Commission reviews all of its rules 
and guides periodically. These reviews seek information about the 
costs and benefits of the Commission's existing rules and guides and 
their regulatory and economic impact. The information obtained 
during these reviews assists the Commission in identifying rules and 
guides that warrant modification or rescission.
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    This notice addresses several issues related to the upcoming 
workshop; provides background on the Green Guides and the Green Guides 
regulatory review; briefly discusses consumer protection issues raised 
by green packaging claims used in today's marketplace; and provides a 
short description of possible issues for discussion at the workshop as 
well as questions for comment.

II. Background Information

    This Federal Register Notice is part of the FTC's standard 
regulatory review of the Green Guides. The following section provides 
background information regarding the Green Guides and the Commission's 
Green Guides regulatory review process.

A. The Green Guides

    The Commission issued the Green Guides to help marketers avoid 
making environmental claims that are unfair or deceptive under Section 
5 of the FTC Act, 15 U.S.C. Sec.  45.\3\ Industry guides, such as 
these, are administrative interpretations of the law. Therefore, they 
do not have the force and effect of law and are not independently 
enforceable. The Commission can take action under the FTC Act, however, 
if a business makes environmental marketing claims inconsistent with 
the Guides. In any such enforcement action, the Commission must prove 
that the act or practice at issue is unfair or deceptive.
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    \3\ The Commission issued the Green Guides in 1992 (57 FR 36363) 
and subsequently revised them in 1996 (61 FR 53311), and in 1998 (63 
FR 24240). The current Green Guides are available at http://www.ftc.gov/bcp/grnrule/guides980427.htm.
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    The Green Guides outline general principles that apply to all 
environmental marketing claims and provide guidance regarding specific 
claims. For all claims, the Guides advise that: qualifications and 
disclosures be sufficiently clear and prominent to prevent deception; 
marketers indicate whether their claims apply to the product, the 
package, or a component of either; claims not overstate an 
environmental attribute or benefit, expressly or by implication; and

[[Page 11373]]

marketers present comparative claims in a manner that makes the basis 
for the comparison sufficiently clear to avoid consumer deception.
    The Guides then specifically address: general environmental benefit 
claims, such as ``environmentally friendly''; degradable, 
biodegradable, and photodegradable claims; compostable claims; 
recyclable claims; recycled content claims; source reduction claims; 
refillable claims; and ozone safe/ozone friendly claims. For each, the 
Guides explain how reasonable consumers are likely to interpret them. 
The Guides also describe the basic elements necessary to substantiate 
claims within each category and present options for qualifying specific 
claims to avoid deception.\4\ The illustrative examples provide ``safe 
harbors'' for marketers who seek certainty about how to make 
environmental claims, but do not represent the only permissible 
approaches to qualifying a claim that would otherwise be consistent 
with the Guides.
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    \4\ The Guides do not, however, establish standards for 
environmental performance or prescribe testing protocols.
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B. Green Guides Regulatory Review

    On November 27, 2007, the FTC published a Federal Register Notice 
commencing the decennial regulatory review of the FTC's Green Guides. 
The Notice solicited public comments in response to questions about the 
Guides' costs, benefits, and effectiveness and also posed claim-
specific questions. The Notice announced that the FTC would be hosting 
public meetings to facilitate public dialogue on issues relating to the 
Green Guides review. The Commission will review and consider 
information gathered at these meetings, in addition to the public 
comments, in formulating its final determination.
    On January 8, 2008, the Commission conducted its first public 
meeting relating to the Green Guides Review--a workshop on Carbon 
Offsets and Renewable Energy Certificates. The meeting announced 
through this Federal Register Notice, entitled ``The Green Guides and 
Packaging,'' will be the second public meeting planned as part of the 
comprehensive review of the Green Guides. A public meeting aimed at 
green claims related to packaging will enable participants and the 
Commission to focus in-depth on an area in which a wide range of green 
claims are prevalent.

III. Green Packaging Claims and Consumer Protection Issues

    Since the Commission last revised the Green Guides in 1998, there 
has been a marked increase in environmental claims, including ``green'' 
claims concerning product packaging. Sellers and marketers, for 
example, frequently use terms addressed in the Green Guides, such as 
``recyclable,'' ``biodegradable,'' ``degradable,'' ``compostable,'' or 
``refillable,'' to claim their packaging is green. Sellers and 
marketers also are using new green claims not presently addressed in 
the Green Guides to emphasize the reduced environmental impact of their 
packaging, including such terms as ``sustainable'' and ``renewable.'' 
For example, some marketers now claim to adhere to a ``cradle-to-
cradle'' philosophy, indicating that their product and its packaging 
are specifically designed to be easily and continuously recyclable.\5\ 
Such claims, which concern the entire, and potentially repetitive life 
cycle of product packaging, raise several consumer perception and 
substantiation issues. Likewise, in recent years there has been a 
proliferation of environmental seals and third-party certifications 
purporting to verify the positive environmental impact of product 
packaging. The criteria for and meaning of these seals and 
certifications also raise consumer protection challenges.
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    \5\ ``Cradle-to-cradle,'' a term coined by authors William 
McDonough and Michael Braungart in their 2002 book entitled Cradle 
to Cradle: Remaking the Way We Make Things, is commonly used to 
indicate that a product has been designed from inception to be 
easily and continuously recyclable, thereby never entering the waste 
stream.
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    Additionally, in recent years, marketers increasingly are using 
``bio-based plastics''\6\ in packaging, resulting in new green 
packaging claims. For example, some marketers now claim that bio-based 
plastic bottles are ``commercially compostable.'' Proper disposal of 
these bottles and other new packaging materials may require new or less 
accessible recycling, composting, or disposal facilities. As a result, 
such claims raise potential consumer perception and substantiation 
issues.
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    \6\ Bio-based plastics are derived from plant sources (such as 
corn, potato starch, or sugar cane) rather than petroleum sources.
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IV. Issues and Questions for Discussion at the Workshop

    Some possible topics for discussion at the workshop are: 1) trends 
in packaging and the resultant environmental packaging claims; 2) 
packaging terms currently covered by the Green Guides, including 
``recyclable,'' ``recycled content,'' ``source reduction,'' 
``degradable'' (including ``biodegradable'' and ``photodegradable''), 
``compostable,'' and ``refillable'' and whether consumer perception of 
these terms have changed; 3) new green packaging claims not currently 
addressed in the Guides, including ``sustainable,'' ``renewable,'' and 
``bio-based''; 4) claims based on third-party certification and 
consumer perception of these claims; 5) the impact of changes in 
science and technology, including the use of new packaging materials 
and the use of new recycling, composting, and disposal techniques, on 
environmental packaging claims; 6) the state of substantiation for 
environmental packaging claims; and 7) the need for additional or 
updated FTC guidance in these areas.
    In addition to considering these possible topics, the Commission 
invites written comments on any or all of the following questions 
regarding environmental packaging claims. The Commission requests that 
responses to these questions be as specific as possible, including a 
reference to the question being answered, and reference to empirical 
data or other evidence wherever available and appropriate.

A. Recyclable

(1) How effective have the Guides been in preventing consumer deception 
and providing business guidance with respect to ``recyclable'' claims 
about packaging? Please provide any evidence that supports your answer.
(2) Has there been a change in consumer perception about ``recyclable'' 
packaging claims (e.g., ``Please recycle'' and the three-chasing-arrows 
symbol) since the Guides were last revised?
 (a) If so, please describe this change and provide any evidence that 
supports your answer.
 (b) Should the Guides be revised to address any such change? If so, 
how?
(3) Has consumers' access to recycling facilities (e.g., curbside and 
drop-off facilities) for packaging changed since the Guides were last 
reviewed?
 (a) If so, how, and how does this change affect consumers' perception 
of what they can and cannot recycle? Please provide any evidence that 
supports your answers.
 (b) Should the Guides be revised to address any such change? If so, 
how?
(4) Have the types of packaging capable of being recycled changed since 
the Guides were last reviewed?
 (a) If so, how, and how do these changes, if any, affect consumers' 
perception of what they can recycle?

[[Page 11374]]

Please provide any evidence that supports your answers.
 (b) Should the Guides be revised to address any such changes? If so, 
how?
(5) Are there ``recyclable'' claims in the marketplace concerning 
packaging that are misleading? If so, please describe these claims and 
provide any evidence that supports your answer.
(6) What recyclability disclosures are businesses currently making 
about packaging?
 (a) Are current recyclability disclosures adequate to apprise 
consumers of the criteria for the recycling of packaging, the 
appropriate methods of recycling, and/or the availability of 
appropriate recycling facilities? Please provide any evidence that 
supports your answer.
 (b) Are current recyclability disclosures adequate for consumers to 
understand whether the product or the package, or both, are recyclable? 
Please provide any evidence that supports your answer.
(7) Should the current recyclability disclosures in the Guides be 
revised? If so, how?
(8) To the extent not addressed in your previous answers, please 
explain whether and how the Guides should be revised to prevent 
consumer deception, provide business guidance, and/or reduce costs the 
Guides impose on businesses, particularly small businesses, with 
respect to ``recyclable'' claims about packaging. Please provide any 
evidence that supports your answer.

B. Recycled Content

(1) How effective have the Guides been in preventing consumer deception 
and providing business guidance with respect to ``recycled content'' 
claims about packaging? Please provide any evidence that supports your 
answer.
(2) Has there been a change in consumer perception about ``recycled 
content'' packaging claims (e.g., the three-chasing-arrows symbol) 
since the Guides were revised?
 (a) If so, please describe this change and provide any evidence that 
supports your answer.
 (b) Should the Guides be revised to address any such change? If so, 
how?
(3) Do consumers make distinctions between ``pre-consumer'' recycled 
content (i.e., materials recovered or otherwise diverted from the solid 
waste stream during the manufacturing process) and ``post-consumer'' 
recycled content (i.e., materials recovered or otherwise diverted from 
the solid waste stream after consumer use) in packaging? Please provide 
any evidence that supports your answer.
(4) Have technological changes affected what consumers consider ``pre-
consumer'' and ``post-consumer''?
 (a) If so, please describe these changes and provide any evidence that 
supports your answer.
 (b) Should the Guides be revised to address any such changes? If so, 
how?
(5) Are there ``recycled content'' claims in the marketplace concerning 
packaging that are misleading? If so, please describe these claims and 
provide any evidence that supports your answer.
(6) To the extent not addressed in your previous answers, please 
explain whether and how the Guides should be revised to prevent 
consumer deception, provide business guidance, and/or reduce costs the 
Guides impose on businesses, particularly small businesses, with 
respect to ``recycled content'' claims about packaging. Please provide 
any evidence that supports your answer.

C. Degradable, Biodegradable, Photodegradable, and Compostable

(1) How effective have the Guides been in preventing consumer deception 
and providing business guidance with respect to ``degradable,'' 
``biodegradable,'' ``photodegradable,'' or ``compostable'' claims about 
packaging? Please provide any evidence that supports your answer.
(2) Has there been a change in consumer perception of these claims 
since the Guides were revised?
 (a) If so, please describe this change and provide any evidence that 
supports your answer.
 (b) Should the Guides be revised to address any such change? If so, 
how?
(3) How do consumers perceive ``degradable,'' ``biodegradable,'' 
``photodegradable,'' or ``compostable'' claims with respect to 
packaging that consumers throw in the garbage (e.g., packaging 
ultimately disposed of in a landfill)? Please provide any evidence that 
supports your answer.
(4) The Guides provide that an unqualified claim that a package is 
``compostable'' should be substantiated by evidence that all the 
materials in the package will break down into, or otherwise become part 
of, usable compost (e.g., soil-conditioning material, mulch) in a safe 
and timely manner in an appropriate composting program or facility, or 
in a home compost pile or device. Should the Guides be revised to 
provide more specificity regarding the time frame for composting?
 (a) If so, why, and what should the time frame be? Please provide any 
evidence that supports your answer.
 (b) If not, why not? Please provide any evidence that supports your 
answer.
(5) Has consumers' access to municipal or institutional composting 
facilities changed since the Guides were last reviewed?
 (a) If so, how, and how does any such change affect consumers' 
perception of what packaging they can and cannot compost? Please 
provide any evidence that supports your answer.
 (b) Should the Guides be revised to address any such change? If so, 
how?
(6) Are there ``degradable,'' ``biodegradable,'' ``photodegradable,'' 
or ``compostable'' claims in the marketplace concerning packaging that 
are misleading? If so, please describe these claims and provide any 
evidence that supports your answer.
(7) To the extent not addressed in your previous answers, please 
explain whether and how the Guides should be revised to prevent 
consumer deception, provide business guidance, and/or reduce costs the 
Guides impose on businesses, particularly small businesses, with 
respect to ``degradable,'' ``biodegradable,'' ``photodegradable,'' or 
``compostable'' claims about packaging. Please provide any evidence 
that supports your answer.

D. Source Reduction

(1) How effective have the Guides been in preventing consumer deception 
and providing business guidance with respect to ``source reduction'' 
claims about packaging? Please provide any evidence that supports your 
answer.
(2) Has there been a change in consumer perception of these claims 
since the Guides were revised?
 (a) If so, please describe this change and provide any evidence that 
supports your answer.
 (b) Should the Guides be revised to address any such change? If so, 
how?
(3) Are there ``source reduction'' claims in the marketplace concerning 
packaging that are misleading? If so, please describe these claims and 
provide any evidence that supports your answer.
(4) To the extent not addressed in your previous answers, please 
explain whether and how the Guides should be revised to prevent 
consumer deception, provide business guidance, and/or reduce costs the 
Guides impose on businesses, particularly small businesses, with 
respect to ``source reduction'' claims about packaging. Please provide 
any evidence that supports your answer.

E. Refillable

(1) How effective have the Guides been in preventing consumer deception 
and

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providing business guidance with respect to ``refillable'' claims about 
packaging? Please provide any evidence that supports your answer.
(2) Has there been a change in consumer perception of these claims 
since the Guides were revised?
 (a) If so, please describe this change and provide any evidence that 
supports your answer.
 (b) Should the Guides be revised to address any such change? If so, 
how?
(3) Are there ``refillable'' claims in the marketplace concerning 
packaging that are misleading? If so, please describe these claims and 
provide any evidence that supports your answer.
(4) To the extent not addressed in your previous answers, please 
explain whether and how the Guides should be revised to prevent 
consumer deception, provide business guidance, and/or reduce costs the 
Guides impose on businesses, particularly small businesses, with 
respect to ``refillable'' claims about packaging. Please provide any 
evidence that supports your answer.

F. Ozone Safe and Ozone Friendly

(1) How effective have the Guides been in preventing consumer deception 
and providing business guidance with respect to ``ozone safe'' or 
``ozone friendly'' claims about packaging? Please provide any evidence 
that supports your answer.
(2) Has there been a change in consumer perception of these claims 
since the Guides were revised?
 (a) If so, please describe this change and provide any evidence that 
supports your answer.
 (b) Should the Guides be revised to address any such change? If so, 
how?
(3) Are there ``ozone safe'' or ``ozone friendly'' claims in the 
marketplace concerning packaging that are misleading? If so, please 
describe these claims and provide any evidence that supports your 
answer.
(4) To the extent not addressed in your previous answers, please 
explain whether and how the Guides should be revised to prevent 
consumer deception, provide business guidance, and/or reduce costs the 
Guides impose on businesses, particularly small businesses, with 
respect to ``ozone safe'' or ``ozone friendly'' claims about packaging. 
Please provide any evidence that supports your answer.

G. Claims Currently Not Addressed by the Green Guides

(1) Should the Guides be revised to include guidance regarding ``bio-
based'' packaging claims? If so, why, and what guidance should be 
provided? If not, why not?
 (a) What evidence supports making your proposed revision(s)? Please 
provide this evidence.
 (b) What evidence is available concerning consumer understanding of 
the term ``bio-based''? Please provide this evidence.
 (c) What evidence constitutes a reasonable basis to support a ``bio-
based'' claim? Please provide this evidence.
(2) Should the Guides be revised to include guidance regarding life 
cycle or ``cradle-to-cradle'' packaging claims?
 (a) If so, why, and what guidance should be provided? If not, why not? 
Please provide any evidence that supports your answer.
 (b) What evidence is available concerning consumer understanding of 
life cycle analyses or the term ``cradle-to-cradle''? Please provide 
this evidence.
 (c) Is there an appropriate scientific methodology to evaluate life 
cycle or ``cradle-to-cradle'' packaging claims? If so, please provide 
any evidence that supports your answer.
(3) Are there other environmental claims concerning packaging not 
currently addressed by the Guides, and if so what are they? Please 
provide any evidence that supports your answer.
 (a) Should the Guides be revised to include guidance regarding these 
claims? If so, why, and what guidance should be provided? If not, why 
not?
 (b) What evidence is available concerning consumer understanding of 
these claim(s)? Please provide this evidence.
 (c) What evidence constitutes a reasonable basis to support these 
claim(s)? Please provide this evidence.

H. Third-Party Certifications and Seals

(1) What evidence is available concerning consumer understanding of 
third-party certifications and seals, labels, or symbols on packaging? 
Please provide this evidence.
(2) Why are marketers using these third-party certifications and seals, 
labels, or symbols on packaging? Please provide any evidence that 
supports your answer.
(3) What criteria are third-party certifiers using to substantiate 
claims made with third-party certification, seals, labels, or symbols 
on packaging? Are those criteria appropriate? Please provide any 
evidence that supports your answers.
(4) Should the Guides be revised to include additional guidance 
regarding these claims? If so, how?
    By direction of the Commission.

Donald S. Clark
Secretary
[FR Doc. E8-3972 Filed 2-29-08: 8:45 am]
BILLING CODE 6750-01-S