On May 23, 2023, the FTC hosted a public workshop on recyclable claims called “Talking Trash at the FTC: Recyclable Claims and the Green Guides.”  The FTC convened the workshop in connection with its ongoing review of the Green Guides.  The workshop included three panels of stakeholders discussing a variety of issues relating to the current state of recycling claims, consumer perception of such claims, and how the FTC should consider updating its guidance.

Background

The Green Guides currently advise that unqualified recyclable claims may be made where recycling facilities are available to 60% or more of the consumers or communities where the product is sold.  The workshop focused on eliciting views on whether the Commission should revise that guidance, including whether the FTC should alter that 60% threshold or otherwise provide guidance on the ultimate outcome of recycled materials.

In his opening remarks, James Kohm, Associate Director for the Division of Enforcement in the Bureau of Consumer Protection, emphasized that the Green Guides are not environmental policy: rather, they provide guidance to avoid deceptive environmental claims.  Kohm encouraged the submission of additional consumer perception evidence.  The FTC will accept written comments on recyclable claims through June 13, 2023.

Panel 1: Current State of Recycling Market and Claims

The first panel discussed present recycling practices and challenges.  Some panelists offered support for the nationalization of recyclable claims.  Kate Bailey of the Association of Plastic Recyclers noted that some momentum for a national labeling system has recently developed, while Anne Germain of the National Waste & Recycling Association called for national uniformity in qualified claims.

In response to questions from the FTC regarding what products can be placed into any curbside recycling system with confidence, Germain stated that there is near-universal recycling of steel and aluminum cans, glass bottles and jars, and fiber products.  Bailey noted that plastics with Resin Identification Codes (“RICs”) 1, 2, and 5 account for 80% of rigid packaging on the market.  Panelists also agreed that these plastics are widely recyclable.  Panelists noted, however, that plastics with RICs 3, 4, 6, and 7 are not widely recyclable, and that although materials recovery facilities (“MRFs”) allow those plastics into mixed bales that are sold at lower prices, those bales are typically broken apart to recover 1, 2, and 5 plastics and landfill other types of plastic.

Panelists also discussed glass recycling.  Adam Riedel of the Environmental Management Office of Arlington County noted the county makes a profit on glass recycling, and the value of recycled glass depends in large part on its separation from other materials due to the high likelihood of broken glass and mixed colors in single-source streams.  The FTC revisited this topic in later panels when it asked speakers to address whether consumers would reasonably think that the use of pulverized low-value glass to cover landfills constitutes recycling.

Panel 2: Consumer Perception of Recycling Claims

During the second panel, panelists described various consumer perception studies that shed light on consumers’ perception of recyclable claims.  The FTC asked speakers to address whether it should increase the Guides’ current 60% threshold for unqualified recyclable claims.  Panelists discussed how consumers may interpret a “recyclable” claim to mean that there is an end market for the recycled product.  Sarah Dearman of The Recycling Partnership noted that producers should bear the burden of ensuring that products are designed to be recyclable, a sentiment that some other panelists echoed during the workshop.  The panelists also discussed an array of possible consumer understandings of “recyclable” claims, and the FTC staff raised the idea that nearly every product is theoretically recyclable.

Noting that it had received several comments related to chemical recycling (also known as molecular recycling), the FTC further asked panelists to address this emerging technology.  Brian Hawkinson of the American Forest & Paper Association observed that thermochemical conversion of materials into fuels is better described as energy recovery, not recycling, and called for the FTC to clearly define chemical recycling.  Karen Hagerman of How2Recycle at GreenBlue further noted that much of the data on chemical recycling focuses on the conversion technologies of pyrolysis and gasification, when in fact chemical recycling encompasses a multitude of technologies.  Hagerman also noted that the attention paid to the end product of chemical recycling is somewhat of a departure from typical consumer perceptions of recycling, which do not contemplate end use.  Kim Holmes of 4R Sustainability suggested that a mass balance approach could raise consumer awareness for all forms of recycling.

At the close of each panel discussion, moderators asked for comments from the audience.  After this second panel, Jennie Romer of the U.S. Environmental Protection Agency (“EPA”) highlighted two points from the environmental agency’s public comment.  First, she said that the EPA advocated for raising the 60% threshold in the Green Guides and explicitly referencing and defining strong end markets in the updated guidance.  Second, she noted that the EPA is currently holding a public comment period on its Draft National Strategy to Prevent Plastic Pollution and would be happy to share feedback with the FTC through official channels.

Panel 3: Future of the Green Guides

In the final panel discussion, the FTC again asked panelists to discuss the 60% threshold.  Peter DePasquale of Keurig Dr Pepper noted that raising that threshold would only increase the number of qualified claims, which are more difficult for consumers to understand.  Raissa Lerner of the California Attorney General’s Office echoed this concern, noting that a “check locally” label, for example, only provides more work for consumers, while Dr. Quinta Warren of Consumer Reports raised accessibility concerns if such qualifications are provided via QR codes or other digital media.  Speaking in support of qualifications, Patrick Krieger of the Plastics Industry Association posited that qualified claims serve an important purpose for marketers to be able to truthfully describe their products.

The FTC and panelists also addressed RICs and qualified claims.  During the first panel, Kaelah Smith of the Connecticut Office of the Attorney General noted that nearly 40 states have statutory requirements for RICs or other resin identification symbols, which panelists acknowledged were originally designed as a technical tool for MRFs, not as a tool for consumers.  In the third panel, Krieger recognized that consumers have become accustomed to looking to RICs in the absence of clear labeling, while other panelists observed that consumers often mistakenly interpret the three-chasing-arrows symbol or solid triangle used for RICs as recyclable claims.  When inconspicuously placed, these RICs are not considered recyclable claims under the current Green Guides.  However, the FTC staff asked whether RICs need a “negative qualification” such as “not recyclable” printed next to the RIC symbol.

Panelists also discussed access to recycling facilities and other recycling programs.  Multiple speakers suggested that measures of access to recycling facilities should incorporate evaluation of convenience factors such as ease of travel and proximity, and some noted the differences in convenience and access between curbside and drop-off recycling programs.  Krieger called for the FTC to identify preferred methodologies to measure access in the update to the Guides.  Others suggested that the 60% threshold for unqualified recyclable claims should mean that 60% of recycled material meets an end market, even when referring to recycling programs beyond curbside recycling, such as store drop-off programs.  Peter Blair of Just Zero cited an ABC News investigation reporting that only 8.7% of plastic bags dropped at stores ultimately reached a domestic facility with plastic bag recycling capability. Further, Raissa Lerner remarked that claims of recyclability that focus only on the consumer’s ability to bring the product to a facility, and not that product’s use in an end market, contribute to “wish-cycling,” or the act of consumers placing materials into recycling streams with the hope that they will be recycled, though the materials are not recyclable and only serve to contaminate the stream.  Peter DePasquale and Patrick Krieger both called for the revised Guides to include specific guidance on how to determine whether consumers have access to a facility that recycles an item.

Conclusion

We expect to see additional public workshops on other key issues raised by the Green Guides review.  In its request for comments on the guidance, the FTC noted a special interest in comments about carbon offsets and climate change, representations about energy use and efficiency, and the use of terms such as “compostable,” “degradable,” “organic,” and “sustainable.”  Covington will continue to monitor this proceeding, which will consider all claims in the Guides as well as new claims not currently addressed.[1]


[1] Megan “Meg” Pritchard, a Summer Associate who attends the University of Virginia School of Law, also contributed to this post.

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Photo of Laura Kim Laura Kim

Laura Kim draws upon her experience in senior positions at the Federal Trade Commission to advise clients across industries on complex advertising, privacy, and data security matters. She provides practical compliance advice and represents clients in FTC and State AG investigations. Ms. Kim…

Laura Kim draws upon her experience in senior positions at the Federal Trade Commission to advise clients across industries on complex advertising, privacy, and data security matters. She provides practical compliance advice and represents clients in FTC and State AG investigations. Ms. Kim advises on a wide range of consumer protection issues, including green claims, influencers, native advertising, claim substantiation, Made in USA claims, children’s privacy, subscription auto-renewal marketing, and other digital advertising matters. In addition, Ms. Kim actively practices before the NAD, including recent successful resolution of matters for both challengers and advertisers. She co-chairs Covington’s Advertising and Consumer Protection Practice Group and participates in the firm’s Internet of Things Initiative.

Ms. Kim re-joined Covington after a twelve-year tenure at the FTC, where she served as Assistant Director in two divisions of the Bureau of Consumer Protection, as well as Chief of Staff in the Bureau of Consumer Protection and Attorney Advisor to former Chairman William E. Kovacic. She worked on key FTC Rules and Guides such as the Green Guides, Jewelry Guides, and the Telemarketing Sales Rule. She supervised these and other rule making proceedings and oversaw dozens of the Commission’s investigations and enforcement actions involving compliance with these rules. Ms. Kim also supervised compliance monitoring for companies under federal court or Commission order.

Ms. Kim also served as Deputy Chief Enforcement Officer at the U.S. Department of Education, where she helped establish a new Enforcement Office within Federal Student Aid. In this role, she managed investigations of higher education institutions and oversaw issuance of fines and adverse actions for institutions in violation of federal student aid regulations. Ms. Kim also supervised the borrower defense to repayment division and the Clery campus safety and security division.

Photo of Lindsay Brewer Lindsay Brewer

Lindsay advises clients on environmental, human rights, product safety, and public policy matters.

She counsels clients seeking to set sustainability goals; track their progress on environmental, social, and governance topics; and communicate their achievements to external stakeholders in a manner that mitigates legal…

Lindsay advises clients on environmental, human rights, product safety, and public policy matters.

She counsels clients seeking to set sustainability goals; track their progress on environmental, social, and governance topics; and communicate their achievements to external stakeholders in a manner that mitigates legal risk. She also advises clients seeking to engage with regulators and policymakers on environmental policy. Lindsay has extensive experience advising clients on making environmental disclosures and public marketing claims related to their products and services, including under the FTC’s Green Guides and state consumer protection laws.

Lindsay’s legal and regulatory advice spans a range of topics, including climate, air, water, human rights, environmental justice, and product safety and stewardship. She has experience with a wide range of environmental and safety regimes, including the Federal Trade Commission Act, the Clean Air Act, the Consumer Product Safety Act, the Federal Motor Vehicle Safety Standards, and the Occupational Safety and Health Act. Lindsay works with companies of various sizes and across multiple sectors, including technology, energy, financial services, and consumer products.

Photo of Alexandra Remick Alexandra Remick

Alexandra Remick is a member of the Advertising and Consumer Protection Group. Her practice focuses on regulatory and compliance matters related to consumer protection. She has experience advising clients on topics including endorsements, social media influencers, native advertising, automatically renewing subscriptions, consumer reviews…

Alexandra Remick is a member of the Advertising and Consumer Protection Group. Her practice focuses on regulatory and compliance matters related to consumer protection. She has experience advising clients on topics including endorsements, social media influencers, native advertising, automatically renewing subscriptions, consumer reviews, and claim substantiation in a variety of contexts. She frequently provides advice on specific advertising compliance questions and works with companies on developing internal advertising compliance policies. She has also represented multiple clients in FTC investigations involving consumer protection issues, has conducted regulatory due diligence on multiple transactions, and has drafted comments on multiple rulemakings.