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DECISION
Chairman’s Ruling
6 April 2010
Complaint 10/168
Complainant: J. Taylor
Advertisement: BrandWorld Limited
Complaint: The Green One television advertisement begins with a title screen
featuring the words “The Checkout”. A woman, Melanie Kerr, then introduced the
product saying, “Check out The Green One. A range of eco-friendly strong high
quality bags that are perfect for the home, office or garden.” A checklist box featured
the text: “NZ Made - Oxo-Biodegradeable
- Contains recycled plastic thegreenone.co.nz”
The woman then said, “They are New Zealand made and being oxobiodegradeable, makes them a better environmental choice.” Text said “At leading
supermarkets and retailers nationwide”, as Melanie concluded, “The Green One, it’s
plastic with a difference”
Complainant, J. Taylor, was of the view that the advertisement breached the Code
for Environmental Claims it was likely to mislead the consumer with regard to the
environmental benefits of the bags when deposited in a landfill.
The relevant provisions were Basic Principles 1, 2, 3 and 3 (a), (b) and (c) of
the Code for Environmental Claims.
The Chairman noted the concern raised about the advertisement by Complainant,
J. Taylor. However, in her view the claim “New Zealand made and being oxobiodegradeable, makes them a better environmental choice.” was not an absolute
claim about “performance in a landfill environment” but a claim which highlighted
that the product was “plastic with a difference” from other similar type plastic bags.
The advertisement also said that the product “Contains recycled plastic”, another
product difference. Having made these observations, the Chairman was of the view
that the advertisement did not contain misleading claims about the product’s
potential superior biodegradability as suggested by the Complainant, and there was
no apparent breach of the Code for Environmental Claims.
Accordingly, the Chairman ruled that there were no grounds to proceed.
Chairman’s Ruling: Complaint No Grounds to Proceed
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DECISION
Meeting 10 August 2010
Complaint 10/168
Appeal 10/020
Complainant: J. Taylor
Advertisement: BrandWorld Limited
Applicant: Kensington Swan for J. Taylor
Complaint: The Green One television advertisement begins with a title screen
featuring the words “The Checkout”. A presenter, Melanie Kerr, then introduced the
product saying, “Check out The Green One. A range of eco-friendly strong high
quality bags that are perfect for the home, office or garden.” A checklist box featured
the text: “NZ Made - Oxo-Biodegradeable - Contains recycled plastic thegreenone.co.nz”. Melanie Kerr then said, “They are New Zealand made and
being oxo-biodegradeable, makes them a better environmental choice.” Text said
“At leading supermarkets and retailers nationwide”, as Melanie concluded, “The
Green One, its plastic with a difference”
Complainant, J. Taylor, said:
“Type: Television
Where: first viewed on the morning of Tuesday 9th march at approx 10:30 am on
TV1 with numerous repeats since
Who: GreenOne
Product: Range of "OXO-Biodegradable" rubbish bags
Complaint To whom it may concern
Whilst watching Television I have begun to see an advertising campaign for the
"GreenOne" range of "degradable" rubbish bags. I first saw this on the morning of
Tuesday the 9th March at approximately 1030am on TVland have seen a number of
times since
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I believe that this add breached the ASA Code for Environmental claims. I believe
that this advert breaches Point 1 regarding generalized environmental claims listed
on the ASA website under the code for environmental claims as noted in Item 2
below. I believe that it breaches Point 2 on the ASA website as noted in Item 3
Below. I also believe that breached Point 3 on the ASA website as also noted in Item
3.
1)This product requires Oxygen, Heat and Uv Light for degradation to occur. As
these elements are absent in landfill environments the bag will not degrade. Whilst
there are environments in which the plastic may degrade I believe that it is
misleading to label the bag as degradable when by nature and essence the bag is
destined for landfill and therefore an environment where it will not degrade. It is a
well-documented fact, confirmed by New Zealand and International university experts
that Oxygen and UV Light absent in landfills other than on the direct surface.
2)This advertisement clams that the product is better for the environment than normal
plastic bags. When in landfill environments there will be no difference between this
plastic bag containing a "degradable" additive and other plastics containing no
additive, neither will degrade and both are considered by experts to be inert. In open
environments where Oxygen, Heat and UV Light are readily available these bags will
degrade and in the process release C02 gas
3)To date the manufacturer has been unable to product no third party, independent
field-testing that the product will perform as stated in landfill environments. There are
no ASTM or ISO proven standards to officially recognized tests to prove that this
product performs as stated in landfill environments.
I believe that the add misleads people by making them believe that they rubbish bag
will OXO-Biodegrade in a landfill because by nature an essence a rubbish bag has
the purpose of going to a landfill.”
The Chairman ruled the following provisions were relevant:
Code for Environmental Claims.
Basic Principle 1
Generalised claims for environmental benefit must be assessed on the
complete life-cycle of the product and its packaging taking into account any
effects on the environment of its manufacture, distribution, use, disposal, etc.
Thus absolute claims for environmental benefit, either stated or implied, are
not appropriate.
eg "Environmentally friendly"
"Environmentally safe"
"Environmentally kind"
"Product X has no effect on the environment"
"100% ecologically sound"
are absolute claims and therefore not acceptable.
Basic Principle 2
Qualified claims such as "environmentally friendlier/safer/kinder" may be
acceptable where the advertised product, service or company can
demonstrate a significant environmental advantage over its competitors or a
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significant improvement on its previous formulation, components, packaging,
method of manufacture or operation.
Basic Principle 3
All claims must:
a.
be able to be substantiated, and
b.
meet relevant local or international standards as appropriate if a
particular benefit is claimed (eg "biodegradable", "organic" etc), and
c.
explain clearly the nature of the benefit,
eg "our product X is kinder to Mother Nature" is unclear and thus
unacceptable but "our CFC-free product X is kinder to the ozone
layer" would be acceptable.
The Chairman ruled that there were no grounds to proceed on 6 April 2010.
Legal Counsel, Kensington Swan, on behalf of the Complainant, J. Taylor,
lodged an application for appeal and said:
“1.1
We act for J. Taylor and refer to your letter dated 30 April 2010 addressed to
our client and a recent telephone conversation between you and our client.
1.2
The purpose of this letter is to appeal the decision communicated in the
letter dated 30 April 2008 whereby the Chairman of the Advertising Standard
Authority (‘ASA’) concluded that the Green-One television Advertisement
(‘Advertisement’) did not breach the Code for Environmental Claims
(‘CEC’).
1.3
The appeal is based on the three grounds, specified below, by which it is
proposed that the Advertisement breaches either the Advertising Code of
Ethics (‘ACE’) or the CEC.
2
Breach of ACE Rule 2
2.1
ACE Rule 2 states:
Advertisements should not contain any statement or visual presentation or
create an overall impression which directly or by implication, omission,
ambiguity or exaggerated claim is misleading or deceptive, is likely to be
deceptive or mislead the consumer, makes false and misleading
representation, abuses the trust of the consumer or exploits his/her lack of
experience or knowledge.
2.2
The Advertisement creates an overall impression that is likely to deceive or
mislead the consumer.
2.3
The overall impression created by the Advertisement is that a consumer
purchasing the plastic bags is being cleaner and greener and is ultimately
benefiting the environment by doing so. The overall impression is created
by the following:
a
The name of the product "Green-One";
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b
The use of the term "eco-friendly";
c
The use of the term "oxo-biodegradeable";
d
The statement: "New Zealand made and being oxo-biodegradeable,
makes them a better environmental choice"; and
e
The use of the slogan "Made in New Zealand exclusively for the
environment".
2.4
Our client instructs us that the Advertisement deceives and misleads the
consumer as there is no proof available that purchasing a Green-One is
environmentally better than purchasing an ordinary plastic bag.
2.5
The Advertisement separates the product from the conditions that would be
required for it to degrade as suggested. Our client informs us that the
research regarding Oxo-biodegradeablity suggests that in order for the bags
to degrade that oxygen, UV light, and heat need to be present. As the
majority of all plastic bags end up in landfill, often all three of these factors
are not present and thus will not allow the plastic bag to breakdown.
3
3.1
Omission of Critical Information
We are informed by our client that the Advertisement highlights the fact that
the bags contain a degradable additive. It omits to inform the consumer of
the requirements for the degradable additive to perform as alluded to. The
Advertisement gives the impression that the bags will degrade when
disposed of, when in actual fact the environment in which the bags end up
will not be conducive to degradation as neither sufficient oxygen or UV light
will be present.
4
Breach of CEC Basic Principle 3
4.1
Basic Principle 3 states:
All claims must be able to be substantiated
4.2
The claims of degradability, that the product is 'eco-friendly', and that the
product is a 'better environmental choice' are unable to be substantiated.
4.3
We are instructed by our client that there have been no tests performed, to
an acceptable internationally recognised industry (ISO, ASTM) standard that
show the product will work at all as per the overall impression given by the
Advertisement. The evidence to the contrary supports the conclusion that
the bags will not degrade because there is a lack of oxygen in a landfill
where they will invariably end up. We attach a copy of a study performed
by the University of California that attests to this fact.
4.4
The item being advertised is a plastic rubbish bag; it is being advertised as
having an environmental benefit over other bags through the inclusion of a
degradable additive. It is impossible to separate the features of the bag, in
this instance a claimed degradability from the fact that by nature the bag will
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end up in landfill where degradation may not occur.
4.5
We request on behalf of our client that you review your decision regarding the
Advertisement as it is likely to mislead and contains claims that are unable
to be substantiated.
4.6
If you have any questions or require any further information please do not
hesitate to contact me.”
On July 1, the Chairperson of the Appeal Board ruled to accept the Appeal and
refer the complaint to the Advertising Standards Complaints Board. His Ruling said in
part:
“The Code for Environmental Claims Basic Principle 1 requires claims for
environmental benefit to be assessed on the complete life cycle of the product
including disposal.
The performance of the bag in a landfill environment is therefore a matter which
should be considered in the context of a claim that it is oxo-biodegradeable and
whether the claim is an absolute one. While this was addressed by the Chairman it is
properly a matter for a decision by the Complaints Board.”
The Advertiser, Pacrite Industries Limited, in response to the Appeal said:
“Thank you for your letter dated July 08 2010, received July 09 2010 advising us of
the Appeal Ruling.
We do not believe our advertisement has breached any of the Environmental Claims
codes listed and we were extremely conscious of the Green Marketing Guidelines
when creating our advertisement. We enlisted the help of Republik to guide us
through the advertisement creation, and chose a format which would allow a lot of
information to be conveyed to the consumer.
Like all plastic products created, the intention is that they will be disposed of correctly
i.e. to landfill or recycling facility, controlled, managed environments. As we and
consumers know, this is not always the case, otherwise we wouldn't have plastic in
our natural environment such as the' Pacific Ocean Garbage Patch'. When plastic is
released into the environment accidentally it is very difficult to control and manage.
Oxo-Biodegradable additives are able to manage the issue of plastic waste in our
environment.
To make the assumption that every rubbish bag produced will make its way to landfill
and not end up accidentally in our natural environment in our opinion, could be
considered environmental negligence as a plastic bag manufacturer.
Oxo-Biodegradable additives are an affordable insurance for keeping our natural
environment free of plastic waste. How can one argue that this is not a benefit to the
environment? In addition to this we incorporate recycled plastic into the bags, print
them using water based inks and manufacture them locally in New Zealand.
We have presented the bags as being a better environmental choice to consumers
because we strongly believe they are. This technology is demanded globally by
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consumers and businesses as everyone is becoming more aware of the impact
plastic can have on our environment.
As stated in the initial ruling dated 6 April 2010, we made no absolute claims about
the performance of the bags in a landfill environment. This is not to say our bags
cannot degrade in a landfill environment. Due to the various types of landfill setups,
the point at which the landfill becomes air locked and has zero oxygen levels is
variable.
Our bags have been laboratory tested and shown to begin fragmenting after
approximately 16 months at 20° C.
It is very likely a bag may be manufactured, stored (both in our warehouse and
retailer warehouses), and merchandised on a store shelf for many months before
making their way into the home of a consumer. By the time a consumer has used the
product and it has been sent to landfill, the process could well be underway.
There is no scientific evidence specific to New Zealand landfill environments known
to us, nor presented by the complainant which would suggest there is absolutely no
possibility our product would have the opportunity to continue the Oxobiodegradation process for many more months before becoming completely void of
oxygen.
Oxo-Biodegradable plastics offer consumers a level of certainty that our product will
not be floating in our oceans, blocking waterways, neither clinging to fences nor
blowing along our beaches in years to come.
Like most waste that goes into a landfill, even organic products such as leaves and
twigs would struggle to degrade once deep down and air locked. Our product, unlike
other waste will not release methane gas once oxygen is completely removed. I have
attached information published by the Oxo-Biodegradable Plastics Association which
responds to a paper released in the USA by the Flexible Packaging Association. The
response states that although ideally plastic waste should be collected for recycling
and Incineration, this is not always a reality in our waste collection system. As quoted
in this response issued by the Oxo-Biodegradable Plastics Association "should it be
disposed of responsibly by consumers and sent to landfill, it will degrade in the upper
layers where oxygen is present, and will not emit methane deeper in the landfill,
unlike paper or compostable plastic".
At the conclusion of the advertisement we have our website address. If consumers
visit the website they will be led to this website www.biodeg.org which explains oxobiodegradable technology in great detail. We are aiding consumers in finding out
everything they would like to know about this technology, so they can see the
science behind it and how it works. We direct them to this third party information
resource as it is consistently updated and has a lot of information. Given that it is a
third party resource, our customers can be assured we are not manipulating the
scientific data in an effort to mislead.
In addition to this, we have been informed, that an employee bearing the same name
and residential address as the complainant works for one of the largest rubbish bag
distributors in New Zealand. This company is also represented by Kensington Swan,
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who were the lawyers appointed to appeal the initial decision made by the
Chairperson.
Although this may be a coincidence, we cannot help but feel this is merely an attempt
to disrupt our business activities and is a negative way in which to conduct business.
I trust the information I have provided is able to assist the Complaints Board in their
decision.
If you have any questions or require any further information, please do not hesitate to
contact me.”
The Production Company, Brandworld, said:
Many thanks for forwarding correspondence from J. Taylor re his Appeal of the
Green One Television Advertisement.
Brand World were the production company who produced this TVC working with the
client's advertising agency Republik.
Pacrite Industries have advised that they are in discussions with J. Taylor's company
via lawyers on a number of issues. His company are in fact their major competitor.
The information J.Taylor has supplied relates to the code for this product type in
Canada and America which is totally different to the European Code and view for
these products.
Pacrite Industries have advised that they will reply to the complaint themselves.
I can advise that this campaign concluded on April 10th 2010 and there are no plans
to repeat it.”
Commercial Approvals Bureau (CAB), on behalf of the Media, said:
“We have been asked to respond to this complaint under the following
codes:
Code for Environmental Claims - Basic Principles 1, 2, 3, 3(a), 3(b), 3(c)
A successful appeal has been made by J. Taylor with regards to a Checkout
commercial for The Green One rubbish bags. The appeal has been accepted on the
grounds that:
 New evidence of sufficient substance has been found.
 Evidence provided to the Complaints Board has been misinterpreted.
 The Chairman's ruling was against the weight of evidence.
The weight of the decision seems to be predicated on a single feature of the rubbish
bags - their oxo-biodegradability. This weighting carries an inherent, though
unintended, bias as it excludes the other features of the product's manufacture
which contribute to the effect of consumer take-out e.g. the incorporation of recycled
plastics and the use of water-based inks as opposed to solvent-based inks.
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The situation above demonstrates a general trend in analysing complaints based on
material and put forward by the complainant, rather than an analytical review of the
commercial itself. After all, it is the commercial which is the chief article of
evidence - all other correspondence, from either party, seeks to either support or
debase its claims.
CAB's position in reviewing commercials is to form an overall assessment of the
advertiser's claims as they appear in that commercial. Where the commercial
describes The Green One rubbish bags as 'eco-friendly' we surmise that the claim is
presented not as an absolute, but as a qualified comparative descriptor predicated on
the extra-normal performance of the product across its life-cycle. [ref. Basic Principle
1]
CAB considers that the qualified, non-absolute claim above is adequately qualified
by presenting the description of the product's properties and components i.e. it's
oxobiodegradability and it's use of recycled plastics. In fact, the use of recycled
plastics alone would be enough to qualify the product's advantage over the majority
of competitors - a rubbish bag using recycled plastics is more environmentally
friendly than a bag that does not (ref. Basic Principle 2). The benefits of adding oxodegradable catalytic agents place this product even further ahead of its
competititors, if only by virtue of potential. [ref. Basic Principle 2]
CAB confidently asserts that all the claims in the commercial are able to be
substantiated. The 'eco-friendly' claim is substantiated by the oxo-biodegradability
and recycled content of the product. These are respectively substantiated by an
analysis of the materials used in the product's manufacture - namely oxo-degradation
catalysts (metals which react in the presence of oxygen) and recycled raw plastic
mass. [ref. Basic Principle 3(a)] CAB considers that detailing these properties and
components in itself constitutes a clear and understandable explanation of the
products benefits [ref. Basic Principle 3(c)]
If there are any applicable international or national standards that the product must
reach in order to be fit for sale, the complainant has failed to name any.
Consequently CAB wonders why Basic Principle 3(b) has been applied; the
complainant's vague allusion to ISO and ASTM are intentionally vague and
immaterial.
CAB asks members of the Board to carefully consider the material facts of this case
and avoid losing perspective in a mass of semi-relevant detail brought forward by
the complainant. In the interests of natural justice, it is the impression of the general
audience which should inform the Board's decision, and not the undisclosed
interests of a sole complainant.”
The Complainant, J. Taylor, provided additional reference material to the
Complaints Board.
The Advertiser, Pacrite Industries Ltd, further responded:
“Thank you for your letter dated July 28 2010. Unfortunately the information was sent
to Republik, our advertising agency as opposed to my office, which has delayed my
response. I hope you are still able to take this information into consideration when
making the final decision.
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
The new information' provided is in fact argumentative material from websites
operated by lobby groups, two of which (Canadian Plastics Industry
Association and the Plastics Industry Trade Association of America) represent
the North American plastics industry who are naturally opposed to
manufacturers of biodegradable or oxo-biodegradable products, because they
are competitors. The ASA should pay no attention to this material whatsoever
because it is unreliable.

Pacrite has made a qualified claim (“a better environmental choice"), not an
absolute claim, and falls within principle 2 of the Code. Pacrite can show that
its product does have a significant environmental advantage over ordinary
plastic bags because: its bags are manufactured with recycled plastics;
printed using water based inks and its bags are oxo-biodegradable. The bags
may not degrade in certain conditions within landfill but they do degrade in,
e.g., rivers and the ocean.

The claims Pacrite has made are accurate and can be substantiated. It has
used recycled plastic. The bags are made in New Zealand. The bags are
printed with water based inks. The bags are oxo-biodegradable. A claim that
a bag is oxo-biodegradable is not a claim that it will degrade in all conditions;
the very term 'axe-biodegradable' implies that oxygen must be present in
order for the bag to degrade.

The requirement in principle 3(a) is that the claim be able to be substantiated,
which it can be, It is not a requirement that the advertiser have expert reports
prepared for this purpose at the time the ad is run.

The complainant has not identified any applicable local or international
standard which the product fails to meet (principle 3(b)).
I trust the information I have provided is able to assist the Complaints Board in their
decision.
If you have any questions or require any further information, please do not hesitate to
contact me.”
Deliberation
The Complaints Board read all the relevant correspondence and supporting
information and viewed a copy of the advertisement. It noted that the Complainant,
J.Taylor, challenged the claims made in the advertisement.
The Chairman directed the Complaints Board to consider the complaint with
reference to the Code for Environmental Claims, Basic Principles 1, 2 and 3 and
Guidelines 3(a), 3(b) and 3(c). These principles restrict the use of absolute claims
for environmental benefit, require claims to be substantiated and to explain the
nature of any benefit claimed.
The Complaints Board first considered the use of the term “eco-friendly” in relation
to Basic Principle 1 of the Code for Environmental Claims. The Complaints Board
noted the term “eco-friendly” was very similar to those listed in the Code as absolute
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claims which are not appropriate in this type of advertising. The Complaints Board
noted that while the bags being promoted in the advertisement had a number of
features that may be considered to be friendlier to the environment, taking into
account the complete life –cycle of the product, this did not justify the use of the
term “eco-friendly” under Basic Principle 1 of the Code for Environmental Claims.
Accordingly, the Complaints Board ruled to uphold the Complaint in relation to the
use of the term “eco-friendly”.
Turning to the other statements made in the advertisement and the overall
consumer take-out, the Complaints Board noted the following:




The product used recycled plastic;
The product used water based not solvent based inks;
It was made in New Zealand; and
It contained oxo-biodegradable additives to assist with the breaking down
process.
The Complaints Board noted the advertisement offered an alternative plastic rubbish
bag product which the Advertiser promoted as a “better environmental choice”. In
the Complaints Board view, the remainder of the claims in the advertisement and
the overall consumer take out were not in breach of Basic Principles 2 and 3 of the
Code for Environmental Claims. In addition, the Complaints Board considered that
adequate substantiation had been provided and that the nature of the benefit of the
product, as identified by the Advertiser, was clear. Therefore, the advertisement was
not in breach of Guidelines (a) and (c) of the Code for Environment Claims. The
Complaints Board did not consider there was any material in the advertisement
relating to Guideline (b) of Basic Principle 3 and it did not consider the complaint
under this Guideline.
In summary, the complaint was not upheld under Basic Principle 2 and 3 and
Guidelines (a) and (c). The complaint was upheld under Basic Principle 1 in relation
to the use of the term “eco-friendly”.
Decision: Complaint Upheld (in Part)