Loyola Consumer Law Review
Volume 3 | Issue 3
Article 2
1991
Green Issues Are Ripe: The Regulation of
Environmental Marketing Claims
Eric F. Greenberg
Partner, Bullwinkel Partners Ltd., Chicago, IL.
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Part of the Consumer Protection Law Commons
Recommended Citation
Eric F. Greenberg Green Issues Are Ripe: The Regulation of Environmental Marketing Claims, 3 Loy. Consumer L. Rev. 80 (1991).
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Loyola Consumer Law Reporter
GREEN ISSUES ARE RIPE: THE REGULATION OF
ENVIRONMENTAL MARKETING CLAIMS
By Eric F. Greenberg*
I.Introduction
Surveys indicate that consumers
are increasingly aware of environmental concerns.' Many consumers say they will pay more for
products they consider
environ2
mentally respoiisible.
With that audience, it is no
wonder that manufacturers are using more environmental claims in
packaging and in advertising.
Manufacturers tout products or
their packages as "recyclable," or
"recycled," "environmentally
friendly," or "degradable," with
increasing frequency.
The proliferation of environmental claims has resulted in much
useful information of interest to
consumers. It has also, however,
led to increased confusion because
there are no nationally recognized
definitions for any of these terms.
While some instances of outwardly
false or deceptive claims exist, a
perhaps larger problem is the confusion caused by innocent but inconsistent use of terminology. Several states have already set
requirements for the use of environmental terminology in connec-3
tion with consumer products.
States are also taking enforcement
actions against what they perceive
as false or deceptive environmental marketing claims. 4 However,
national standards are still lacking
despite the many efforts to generate them.
An individual product or package labeled "recycled" may by itself raise no issues of concern to
regulators. However, place it on a
shelf next to another product or
package also labeled "recycled,"
and questions begin to arise: Do
they both have the same recycled
content? Is the recycled content
material that has already been in
the consumer waste stream, or it is
manufacturing plant scrap?
Most interested parties addressing these issues, including some
state officials, are clamoring for a
national solution. For example, the
80
National Association of Attorneys
General has produced Green Report II, a revision to its November
1990 report, in which it addressed
environmental marketing claims. 5
Trade groups, including the National Food Processors Association, and other consortiums, have
also stated their positions. 6 New
York, California and several other
states already have effective laws
regulating these claims. 7 The Federal Trade Commission and other
federal regulators are evaluating
the possible national solutions.
Likewise, Congress is evaluating
proposed legislative solutions.
This article will review some of
the major national efforts to develop definitions and controls on en-
The proliferation of
environmental claims has
resulted in much useful
information of interest to
consumers. It has also,
however, led to increased
confusion because there are
no nationally recognized
definitions for any of these
terms.
vironmental claims, and will explore the legal issues raised by
these claims. First, the article examines common environmental
claims, and then analyzes the Environmental Claims Marketing Bill,
a solution currently being considered in Congress. The article then
outlines the other approaches being presented by federal regulators,
state attorneys general and private
organizations. Finally, the article
concludes that although it is unclear from which source the new
regulatory solution will come it
will hopefully provide a national
framework for more uniform definitions and use of environmental
claims.
II.Common Environmental Claims
Each environmental marketing
claim raises different legal issues.
The following is a summary of the
typical claims and their resultant
legal questions.
A. "Recycled"
When a package or product is
referred to as "recycled," a natural
question is how much of it is
recycled. Few products or packages
are made of 100% recycled material.
Another issue is whether the
material used is post-consumer,
that is, did the recycled material
already serve its intended consumer purpose? Many industries have
long collected scrap of their own
manufacturing process and used it
again to make products. With more
frequency, regulators are claiming
that companies do not deserve
credit for use of such "plant
scrap," arguing that this material is
not diverted directly from the
waste stream, in contrast to postconsumer material.8 Defining "recycled" to include only post-consumer material forces more
companies actually to reduce the
waste stream.
Finally, sometimes a label or
advertisement fails to adequately
distinguish between recycled packaging and a recycled product.
B. "Recyclable"
Anything is recyclable, at least
theoretically. Many regulators
would like to see the term used
only when the prospect of recycling
is realistic. For example, the state
of New York requires that the
particular product or package must
be currently recyclable only in a
relevant local area before the claim
can be made. 9
Eric F. Greenberg is a partner in the
Chicago law firm of Bullwinkel Partners,
Ltd., where he specializes in food and drug
law. He is a graduate of Northwestern
University and Cornell Law School.
*
Volume 3 Number 3/Spring, 1991
Loyola Consumer Law Reporter
C. "Degradable"
If a product can degrade, many
regulators want to be provided
assurance that it will degrade under expected conditions of its life
cycle. Thus, Mobil Chemical Co.
was slapped with suits in several
states for deceptively claiming its
Defining "recycled" to include
only post-consumer material
forces more companies
actually to reduce the waste
stream.
Hefty bags were "degradable,"
when most ended up in landfills,
unexposed to the light needed to
break them down.' 0
Another issue is whether degradable plastics are really better than
those that are incinerated or landfilled."I
D. "Environmentally Friendly"
A reasonable argument can be
made that a term like "environmentally friendly" applies to some
products; however, it may be difficult to find a consensus on how to2
evaluate a product's friendliness.'
In one recent effort, private companies are evaluating products for
possible issuance of a stamp of
approval, such as a "green seal,"
based on the environmental effects
of the entire life-cycle of a product,
from manufacturing through distribution and disposal.' 3
III. The Legislative Approach
A. Iegislative Background
It is uncertain who will win the
regulatory derby to set national
standards for environmental
claims. However, Senator Frank F.
Lautenberg's (D-NJ) Environmental Marketing Claims Bill has
broad support. It is likely to be
considered along with other solid
waste issues as part of hearings on
reauthorizing the Resource Conservation and Recovery Act. 14 A
counterpart bill has been introduced in the House.' 5
Thorough though it may be if
passed in its present form, national
legislation often results only after
several years of tinkering and debate. Industry guides issued by the
Federal Trade Commission
Volume 3 Number 3/Spring, 1991
("FTC") or Environmental Protection Agency ("EPA") definitions to
guide voluntary compliance 6 may
be part of the solution, and they
could be quicker fixes.
The proposed legislation is complex approach to environmental
claims. Although predictions about
the passage of the bill are difficult
to make, this article will review the
bill's provisions as a framework for
analyzing the issues in this area.
Senator Lautenberg introduced
his Environmental Marketing
Claims Bill in 1990, but it was
unsuccessful. In reintroducing it
this year, the Senator noted that
"American businesses realize the
growing consumer demand for
products that do not harm or are
less harmful to the environment.
They have responded with a pleth-
"Without any direction, the
good-willed consumer who
wants to do something to
protect our environment is
being confused, misled, and
sometimes deceived."
ora of environmental claims on
products and packages."' 7 He added that not all claims are reliable,
and many are deceptive and misleading.
Lautenberg lamented the plight
of the environmentally conscious
consumer: "Without any direction,
the good-willed consumer who
wants to do something to protect
our environment is being confused, misled, and sometimes deceived."' 8
Noting well-intentioned industry efforts, Lautenberg also said
that he commends "those manufacturers that honestly want to
respond to consumer demand for
environmentally preferable products. They, as much as anyone,
want to play by a common set of
rules. The American people want
to see firms invest in equipment or
processes that can back up environmental claims."' 9
Lautenberg then identified one
of the most important competitive
issues facing industry in the area of
environmental claims: "... companies will not want to do it if their
competitors can make the same
claim without the same commitment." 20
Thus, Lautenberg's bill provides
for an elaborate bureaucratic structure to address environmental
claims. It would create an independent advisory board for the development of definitions, prohibitions and penalties, provide for
state enforcement, and even permit private actions for enforcement. 2'
B. Definitions
Definitions are the central issues
in this debate, and the Lautenberg
bill has many. It not only defines
basic terminology like "product,"
"package," and "post-consumer
material," it also calls for the development of regulations to govern
the use of terms like "recyclable,"
"reusable" and others. 22
The new definitions will be produced with the help of an independent advisory board, which is to
consist of eleven regular members
(three consumer advocates, five
industry members, three environmental organization representatives) and four ex officio members
Senator Lautenberg noted
that "American businesses
realize the growing consumer
demand for products that do
not harm or are less harmful
to the environment. They
have responded with a
plethora of environmental
claims on products and
packages."
(two state officials, one local government official, and one representative from the National Institute
of Standards and Technology). 23
At a minimum, the Board must
make recommendations on definitions and standards for regulating
environmental marketing claims. 2 4
The Administrator will consider
the Board's recommendations and
issue regulations governing the use
of environmental marketing
claims. 25 The Board must also prepare and submit an annual report
to the EPA Administrator, outlining its activities and recommenda(continued on page 82)
81
Loyola Consumer Law Reporter
Green Issues
(continued from page 81)
tions on regulation of2environmen6
tal marketing claims.
The regulations issued by the
Administrator must meet certain
specific requirements. For example, the Administrator is required
to insure that environmental marketing claims are not false, misleading or deceptive, and must
assure that they are related to a
impact or
specific environmental
27
attribute.
Under the regulations, environmental marketing claims must not
state the absence of an environmental attribute, (i.e. "does not
pollute"), unless (1) the attribute is
a usual characteristic of the product or package; (2) the statement is
permitted by a regulation which is
turn must be based on a finding
that it would assist consumers
ondary materials used in such
product or package and no30symbols
are used in such claim."
The utilization of specific percentages is something that makes
many manufacturers uncomfortable. The Lautenberg bill's system
.. a claim relating to a
"recyclable" product or
package is limited to
situations where the person
responsible for the claim can
demonstrate that the product
or package "shall be recycled
(presumably nationwide) at a
minimum rate of twenty five
percent per annum" until
2000, fifty percent thereafter.
of percentages at least has the
virtue of simplicity, as compared
with the regulations already in
3
place in the state of New York. '
Lautenberg also said that he
The New York system employs
commends "those
an elaborate chart specifying a
minimum percentage of post-conmanufacturers that honestly
sumer material and secondary mawant to respond to consumer
terial (pre- and post-consumer) for
demand for environmentally
a wide range of specific materials.
preferable products. They, as
These regulations have been effective since December 1990.
much as anyone, want to play
New York also regulates the use
by a common set of rules.
of emblems in conjunction with
words like "recycled" and "recymaking environmental value comclable." For example, only packagparisons; and (3) the statement
es or products that meet the applidiscloses that the attribute is not a
cable minimum percentage
usual characteristic. Also, staterequirements32 can use the "recyments cannot be made if found to
cled" claim.
be misleading "in light of another
California also has a new law
environmental characteristic
of
the
that
defines a variety of environ'28
product or package.
mental claim terms. 33 Only those
Finally, specific parameters for
that meet the definitions can use
some of the most common words
the terminology. California recogare included in the bill. A product
nizes the possibility of future fedor package making a claim about
eral regulation. It permits products
its "recycled content" must refer to
to meet definitions "in trade rules
post-consumer materials, the peradopted by the
Federal Trade
34
centage of recycled material must
Commission."
be specified in the claim, and there
The bill provides that a claim
must be at least twenty five percent
relating to a "recyclable" product
post-consumer material by weight
or package is limited to situations
until the year 2000;
at
where the person responsible for
least
fifty
29
percent thereafter.
the claim can demonstrate that the
An exception to the percentage
product or package "shall be recyminimums is made when marketcled (presumably nationwide) at a
ing claims include "a sentence ... minimum rate of twenty five perthat states the percentage (by
cent per annum" until 2000, fifty
weight) of post-consumer and secpercent thereafter. 35 Other restric82
tions would apply to the use of
36 and "biowords like "reusable"
37
degradable."
C. An Elaborate Enforcement System
One significant change in this
year's version of the Bill is the
addition of a provision for state
enforcement. Actions to enforce
the new law, or restrain violations,
"may be brought in the name of the
state in which the product or package ... is located," but the state
must notify the EPA
thirty days
38
before proceeding.
Even citizens can play a role in
enforcement. Citizens may sue violators or the EPA Administrator to
force him to act as the law requires.
The citizen plaintiff must given
prior notice to the EPA and wait
sixty days, and must notify the
alleged violator, before proceeding. Prior action by EPA or the
Attorney General will preempt private suits. 39 Victorious citizens
may be awarded attorneys' fees,
costs of suit,
and fees for expert
40
witnesses.
Presumably, these provisions
are aimed at making up for a lack
of federal resources for enforcement by deputizing state officials
and private citizens to assist in
enforcement. 4' The remedies in the
Even citizens can play a
role in enforcement. Citizens
may sue violators or the EPA
Administrator to force him to
act as the law requires.
Bill are not intended to restrict
existing statutory or common law
remedies, nor to alter existing remedies against false or misleading
claims. States would still be free to
enact or enforce environmental
marketing claim rules that are
-more stringent" than a federal
42
standard or requirement.
D. Certification System
The bill would create a certification system for those intending to
use environmental marketing
claims. The user would have to
submit a certification that it complies with the requirements of the
law, such as those for the given
claim. EPA may disapprove of the
Volume 3 Number 3/Spring, 1991
Loyola Consumer Law Reporter
certification if it does not meet the
regulation's requirements. In addition, recertification is required
when product or package changes
are made or when43 new regulations
are promulgated.
The law would prohibit failure
or refusal to comply with a regulatory definition, or any EPA order
44
issued pursuant to the regulation.
It also prohibits failure to file a
certification, use of a disapproved
certification, or use of a claim
"that is inconsistent with the requirements of section 6(d). '' 45 This
Given the efforts of other
parties to provide guidance
for environmental marketing,
and in light of four formal
petitions and other less formal
requests for action, the FTC
has now decided to consider
more formal options.
last phrase appears to fill the loophole for any claims that EPA did
not specifically anticipate.
E. Penalties
The penalties called for by the
legislation are severe. Civil penalties can be as high as $25,000 per
separate "violation," defined as
each day a violation continues.
EPA must afford notice and an
opportunity for hearing
before as46
sessing penalties.
In addition, knowing or willful
violations carry the extra wallop of
criminal penalties: Up to $25,000
in fines for each day of violation,
and up to a year in prison. 47 The
law even builds in a program to
increase the fines to keep up with
48
inflation and the cost of living.
IV. Other Approaches To
Regulation
A. The FTC Option
On May 31, 1991, the FTC
issued a Federal Register notice
which reviewed the petitions and
input it had received on environmental claims, and requested public comment on the issue.
The FTC noted that in the past it
has applied its traditional, case-bycase enforcement approach for
"deceptive unsubstantiated, or unfair advertising or labeling
Volume 3 Number 3/Spring, 1991
claims" '49 to the regulation of environmental claims. The FTC relies on Policy Statements on Deception, 5 0
Advertising
Substantiation, 5 ' and Unfairness5 2
to guide its actions regarding advertising claims.
Given the efforts of other parties
to provide guidance for environmental marketing, and in light of
four formal petitions and other less
formal requests for action,53 the
FTC has now decided to consider
more formal options. The FTC has
scheduled hearings in July to seek
input on how to approach the
regulation
of environmental
54
claims.
The FTC regulates unfair or
deceptive trade practices under
Section 5 of the Federal Trade
Commission Act.55 This means the
Commission regulates advertising
and marketing practices. The Act
provides FTC with the authority to
promulgate trade regulation 5rules
6
which have the force of law.
A less cumbersome system is the
issuance of industry guides. FTC
This more flexible
approach leaves more to
market forces while still
identifying deceptive or false
uses of terminology. For this
reason, the flexible approach
may encourage the making
of claims that are
helpful to consumers.
regulations describe those guides
as "administrative interpretations
of laws administered by the Commission for the guidance of the
public in conducting its affairs in
conformity with legal requirements." 57
Industry guides "provide the basis for voluntary and simultaneous
abandonment of unlawful practices by members of industry," and
violation can result in "corrective
action." 5 They may be promulgated pursuant to the Commission's own initiative or a citizen's
petition "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 obser-
vance of laws administered by the
Commission.5 9
One petition, from the National
Food Processors Association, asks
the FTC to set voluntary national
guidelines for environmental marketing claims. 60 NFPA prefers
guides because they provide a
more flexible system; guides do not
dictate specifically the parameters
6
of acceptable marketing claims. '
In short, the guides provide flexibility while still providing guidance and national-level leadership.
The NFPA proposal contains
both general guidelines and guidelines for claims. For example, a
general guideline may state: "It is
deceptive to misrepresent, directly
or by implication, that a product or
package, or a portion thereof, is
made of recycled materials," followed by examples
of specific ap62
plications.
This more flexible approach
leaves more to market forces while
still identifying deceptive or false
uses of terminology. For this reason, the flexible approach may
encourage the making of claims
63
that are helpful to consumers.
FTC points out, however, that
guides have certain inherent disadvantages. For example, guides cannot be an independent legal basis
for FTC enforcement action; the
agency must still determine that a
particular claim violates section 5
of the FTCA. 64 Guides also lack
"formal, preemptive effect on state
or local laws or regulations", therefore they "will not necessarily impose uniformity on '65a system of
diverse regulations.
The Green Report IIauthors
explicitly state that the
recommendations are neither
laws nor "an attempt at
rulemaking," and do not
change existing state laws
against false, misleading or
deceptive advertising. The
Report may, however, help
industry avoid violating those
state laws.
B. The Environmental Protection
Agency
The U.S. Environmental Protec(continued on page 84)
83
Loyola Consumer Law Reporter
Green Issues
(continued from page 83)
tion Agency has undertaken its
own efforts to address the definitional vacuum. A preliminary announcement on the subject prepared by EPA officials is due this
summer.
The agency will reportedly offer
options for the use of common
environmental terminology in advertising, marketing and labeling,
and ask for public comments on
them. 66 All the options will be
voluntary. The announcement will
include details of a meeting to
discuss the issues in the late summer or early fall.
C. The Green Reports
In the November 1990 and the
May 1991 Green Reports, a group
of state attorneys general called on
federal authorities to "develop uniform national standards for environmental advertising," 67 particularly definitions to guide
marketing claims. However, the
Reports were careful not to call for
68
states to be preempted.
The Green Report II's final rec-
.. federal and state
authorities can be expected to
continue to rely on their
generalized statutory powers
to thwart false or deceptive
labeling and advertising.
ommendations are intended to
provide "interim guidance to the
business community. '69 The attorneys general recommend that environmental claims be: (1) specific;
(2) reflective of current solid waste
management options; (3) substantive; and (4) supported by scientific evidence. 70 The Report specifically recommends that only postconsumer material be referred to
as "recycled," 7' and that separate
percentages of pre- and post-con72
sumer content be disclosed.
The authors explicitly state that
the recommendations are neither
laws nor "an attempt at rulemaking," and do not change existing
state laws against false, misleading
or deceptive advertising.7 3 The Report may, however, help industry
avoid violating those state laws.
84
V. Conclusion
It is still unclear from which
regulatory authority national definitions will come. They may be
legislated, promulgated as regulations, or merely established as voluntary guidelines.
In the meantime, federal and
state authorities can be expected to
continue to rely on their generalized statutory powers to thwart
false or deceptive labeling and advertising. These enforcement actions will probably be less consistent than they would be if
preemptive national definitions
existed. Authorities may be forced
to limit themselves to acting
against only the most blatantly
false or deceptive claims.
The proliferation of environmental marketing claims, on the
other hand, appears certain to continue.
ENDNOTES
1 Holusha, J., "So, What is 'Environmentally Friendly?,"' The New York Times,
January 26, 1991, Consumer's World,
p. 17, col. 1; Comments of Sen. Lautenberg, 137 Cong. Rec. 42, S3034-3035
(March 12, 1991).
2 Id.
3 See e.g. 6 NYCRR § 368.
4 Holusha, J., "Companies Fighting
States' Steps to Curb 'Recyclable
Claims," The New York Times, January
8, 1991, p. Al, col. 1.
5 "The Green Report: Findings and Preliminary recommendations for Responsible Environmental Advertising,"
November 1990, endorsed by the Attorneys General of CA; FL; MA; MI; MO;
NY; TX; UT; WA; WI; "The Green
Report II: Recommendations for Responsible Environmental Advertising,"
May 1991, endorsed by the same attorneys general and that of TN.
6 Two additional examples are The Coalition of Northeastern Governors ("CONEG") and The Northeast Recycling
Council.
7 See supra note 3 and accompanying
text.
8 New York's regulations define "secondary" or "recovered material" as
including pre- and post-consumer
waste but exclude materials or byproducts "generated from, and commonly used with, an original manufacturing process or separate operations
within the same parent company." 6
NYCRR § 368.2 (o). In The Green
Report II, May 1991, a group of state
attorneys general recommend that "recycled" refer only to post-consumer
materials, that recycled content claims
should be specific and separate percentages of pre- and post-consumer
materials should be disclosed. The
Green Report II, p. 8.
9 See 6 NYCRR § 368.2 (k), defining
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
"recyclable" in terms of "access to
community recyclable recovery programs" for at least 75% of the state,
among other grounds.
Holusha, J., "Companies Fighting
States' Steps to Curb 'Recyclable'
Claims," The New York Times, January
8, 1991, p. Al, column 1.
Many experts believe biodegradability,
while a favorite of the public, is not a
major part of the solution to solid waste
disposal, preferring source reduction,
composting and recycling, for example.
Holusha, J., "So, What is 'Environmentally Friendly'?", The New York Times,
January 26, 1991, Consumer's World,
p. 17.
The Green Report notes: "...[T]he production and use of products necessarily has adverse environmental
consequences .... Such claims [as] 'environmentally friendly' should be avoided altogether, or, if used at all, should
specify in close proximity and comparable prominence to the generalized
claim the basis for the claim." The
Green Report, pp. 32-33.
So-called "cradle-to-grave" analysis of
materials involves analysis of the environmental impact of manufacturing,
distribution and use along with disposal. See Freeman, L., "Ecology seals vie
for approval," Advertising Age, January 29, 1991, p. 30.
RESOURCE CONSERVATION AND RECOVERY ACT, 42 § U.S.C 6901 et seq. (1988).
See also Sen. Albert Gore's earlier
"National Recyclable Commodities Act
of 1989", S. 1884 (1989).
HR 1408, 102nd Cong., 1st Sess.
(1991).
The Environmental Protection Agency
is reportedly working on standardized
definitions of "recycled" and "recyclable" that would be voluntary.
137 Cong. Rec. 42, S3034 (March 12,
1991).
137 Cong. Rec. 42 at S3035.
Id.
Id.
As an aid to future legal researchers,
the bill contains an extensive and appropriately puffy list of findings and
purposes. It notes that the U.S. is
facing growing environmental problems, and that environmental marketing
claims convey information about products and influence purchasing decisions. The bill's stated purposes
include the prevention of fraudulent,
deceptive and misleading environmental marketing claims; the empowerment
of consumers with reliable and consistent guidance; the establishment of
uniform, accurate standards and definitions; and the encouragement of innovative product development and
practices that consider the environmental perspective. The Environmental
Marketing Claims Bill, 102nd Cong. 1st
Sess. S. 615, 2 (1991).
The Environmental Marketing Claims
Bill, S. 615, 102nd Cong., 1st Sess., §§
3, 6(b) (1991).
Id. at § 5.
Id. at § 6(a).
Id. at § 6(b).
Id. at § 5(d).
Volume 3 Number 3/Spring, 1991
Loyola Consumer Law Reporter
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
Id. at § 6(b)(2).
Id. at § 6(d)(3).
Id. at § 6(b)(7)(A)(i).
Id. at § 6(b)(7)(A)(ii).
6 NYCRR § 368.4 contains a table
listing minimum levels of secondary
material and post-consumer materials
for 16 separate types of materials, such
as tissue products, aluminum and plastics.
6 NYCRR § 368.4.
CAL. Bus. & PROF. CODE, § 17508.5
(1990). California requires any material
calling itself "recycled" to contain at
least 10% recycled content. CAL. Bus. &
PROF. CODE § 17508.5(e) (1990).
Id. at§ 17508.5.
S. 615 at § 6(b)(7)(B).
Id. at § 6(b)(7)(C).
Id. at § 6(b)(7)(D).
Id. at § 10.
Id. at § 11. Do state enforcement
actions preempt citizen suits? The bill
does not say.
Id.
As currently drafted, the section leaves
open many questions, such as: Can
federal law expand the powers of statecreated authorities in this Way? Will
state actions be brought in state or
federal court? Will a 30-day waiting
period be too cumbersome and slow?
Questions like these arose after passage of the Nutrition Labeling and
Education Act, P.L. 101-535 (November
8, 1990) last year. That law mandated
new federal food labeling rules, but also
permitted state enforcement of the federal requirements. See, Greenberg,
"The Changing Food Label: The Nutrition Labeling and Education Act of
1990", 3 Loy. Consumer L. Rep. 10
(Fall 1990).
S. 615 at§ 13.
Id. at § 7.
44
45
46
47
48
49
50
Id. at § 8.
Id.
Id. at § 9(a).
Id. at § 9(b)
Id. at § 9(c).
56 Fed. Reg. 24968(1991).
FTC Policy Statement on Deception,
appended to Cliffdale Associates, Inc.,
103 FTC 110 (1984). Deception will be
found if there is a "representation,
omission or practice that is likely to
mislead in a material way the consumer
acting reasonably in the circumstances." It's material if it's likely to affect the
consumer's conduct or decision regarding the product or service. 56 Fed.
Reg. 24968.
51 FTC Policy Statement Regarding Advertising Substantiation, appended to
Thompson Medical Co., 104 F.T.C. 648
(1984). Advertisers must have a reasonable basis for claims both express
or implied; claims are to be supported
by the level of substantiation they communicate. 56 Fed. Reg. 24968.
52 FTC Policy Statement on Unfairness,
Companion Statement to Letter from
Commission to Honorable Wendell H.
Ford and John C. Danforth, Dec. 17,
1980, appended to International Harvester Co., 104 F.T.C. 949, 1072 (1984).
Consumer injury is the crux of an
unfairness determination; unfairness is
found if the injury is 1. substantial; 2.
not outweighed by benefits to consumers or competition; and 3. not able to be
avoided by consumers themselves. 56
Fed. Reg. 24969.
53 Submissions seeking FTC guides or
other action have been made by the
National Food Processors Association;
the National Association of Attorneys
General; Mobil Chemical Co.; First
Brands Corp; and The Cosmetic, Toiletry and Fragrance Association and
54
55
5f
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
Nonprescription Drug Manufacturers
Association. 56 Fed. Reg. 24969-70.
56 Fed. Reg. 24971.
15 U.S.C. § 45 (1987).
16 C.F.R. § 1.7 (1991). Such rules are to
"define with specificity acts or practices which are unfair or deceptive acts or
practices in or affecting commerce. 16
C.F.R. § 1.8.
16 C.F.R. § 1.5 (1991).
Id.
16 C.F.R. § 1.6.; Guides that have been
promulgated for specific industries,
such as that the nursery industry, mirror industry and jewelry industry, are
collected beginning at 21 C.F.R. Part
17.
In the Matter of National Food Processors Association, Petitioner, Feb. 14,
1991.
Id.
"Example 2: A soft drink bottle is
labeled "recycled." The claim is deceptive unless the bottle is made from
recycled materials. The bottle cap is an
incidental component not addressed by
the claim. Similarly, it would not be
deceptive to label a shopping bag
"recycled" where the bag is made of
recycled material but the handle, an
incidental component, is not."
56 Fed. Reg. 24971
Id.
Id.
Personal communication, William MacLeod, Environmental Protection Specialist, Recycling Section, U.S. E.P.A.,
June 13, 1991.
The Green Report II, p. vi.
Id.
Id. at p. vii.
The Green Report, pp. 1-30.
Id.
The Green Report II,pp. vii-viii.
The Green Report II,p. viii.
ANNOUNCEMENT
New Committee To Focus On
Consumer Protection
The Section of Antitrust Law of the American Bar Association has created a Consumer
Protection Committee to focus on consumer protection developments and enforcement
initiatives. State and private enforcement activities and counseling issues involving consumer
fraud, deceptive advertising and marketing will be the principal interests of the Committee. The
Committee's membership includes state and federal agency lawyers, corporate counsel, and
private practitioners involved in advertising and consumer protection matters.
If you wish to join the Committee or if you want further information about its activities,
contact the Committee Chair:
Ray V. Hartwell, III Esq.
Hunton & Williams
P.O. Box 1535
Richmond, Virginia 23212
(804) 788-8510
(804) 788-8218 (FAX)
Volume 3 Number 3/Spring, 1991
85