Coca-Cola Wins Greenwashing Case

The DC Superior Court has granted Coca-Cola Company’s motion to dismiss a 2021 lawsuit filed against it for false and deceptive marketing practices. Plaintiffs argued that the company had falsely represented itself as a sustainable and environmentally friendly company. The 2021 Complaint alleged that Coca-Cola’s representations violate the District of Columbia Consumer Protection Procedures Act (“DC CPPA”) because its marketing and advertising “tend to mislead and are deceptive about the true nature and quality of its products and business.”

The Complaint stated that the marketing is false and deceptive because the company “portrays itself as ‘sustainable’ and committed to reducing plastic pollution while polluting more than any other beverage company and actively working to prevent effective recycling measures in the U.S.” The Complaint cites numerous examples, including:

  • A statement on the Coca-Cola website stating, “Our planet matters. We act in ways to create a more sustainable and better shared future. To make a difference in people’s lives, communities and our planet by doing business the right way.”
  • A statement on the company website stating, “Make 100% of our packaging recyclable globally by 2025. [And] [u]se at least 50% recycled material in our packaging by 2030.”
  • A statement on the company’s Twitter account stating, “Scaling sustainability solutions and partnering with others is a focus of ours.” “Make 100% of our packaging recyclable globally by 2025. [And] [u]se at least 50% recycled material in our packaging by 2030.”

Coca-Cola filed a motion to dismiss in response. The DC Superior Court found that Coca-Cola’s statements were aspirational in nature and, therefore, not a violation of the DC CPPA. The Court stated that Earth Island Institute had not alleged that any statement made by Coca-Cola was provably false or plausibly misleading or that the company misled consumers as to its products’ characteristics. The Court acknowledged that Coca-Cola may have failed to meet advertised environmental goals in the past, but that does not impede its ability to set future environmental goals publicly.  In addition, the Court held that Coca-Cola’s statements were not tied to a “product or service” as required by DC CPPA. None of the statements were included on the bottle of any product or in the marketing of any product. Furthermore, the Court determined that Coca-Cola’s statements are not sufficient to create a misleading “general impression” or a “mosaic of representations” to a reasonable DC consumer as a matter of law under the DC CPPA.

The Court further stated that the Complaint could not prevail because it was based on how Coca-Cola has branded itself, and the DC CPPA does not have any controlling authority on how a brand cultivates its image. Coca-Cola made no specific environmental commitments, which further made it difficult for the Court to take any action. The Court stated that in other similar cases, companies made claims such as “100% recycled and recyclable bottles,” which is concrete and indicative of a promise to customers, as opposed to vague aspirational statements from Coca-Cola, such as the recyclable packaging by 2025.

Federal Trade Commission Seeks Comment on Green Guides

The Federal Trade Commission (FTC) released a request for public comment on updating its  Guides for the Use of Environmental Marketing Claims (“Green Guides”), which provides guidelines for businesses that want to use environmental marketing claims in their advertising and labeling. The Green Guides aim to help businesses avoid making deceptive or misleading environmental. This includes assisting businesses in determining how consumers are likely to interpret specific claims and how to substantiate environmental claims.  In addition, the Green Guides present options for qualifying claims to avoid deception.

The Commission reviews the Green Guides every ten years, with the last review occurring in. Accordingly, FTC is now seeking comments on the Green Guides to ensure they continue providing helpful guidance for businesses and consumers.

In its request for public comment, the Commission has requested feedback by providing approximately 40 questions as prompts. The questions focus on what FTC Chair Lina M. Khan describes as “relatively emerging environmental topics” and businesses’ views on the Green Guides’ value. Topics include:

  • The use of environmental marketing claims in the context of emerging technologies and market trends, such as ozone friendly/safe, carbon offsets, recyclability, and energy efficiency, and whether the Green Guides should be updated in addressing these areas.
  • The impact of the Green Guides on small businesses, including any challenges or benefits that small businesses have experienced as a result of following the guidelines.
  • The extent to which the Green Guides are consistent with international guidelines and standards for environmental marketing claims.
  • Any additional guidance or clarification that the FTC could provide to help businesses make accurate and non-deceptive environmental marketing claims.

FTC also asks for comment on whether the Guides overlap or conflict with other federal, state, or local laws or regulations, and if so, how?

Additionally, the Commission requests comments on the Guides’ interaction with other environmental marketing regulations and whether the Commission should consider rulemaking to establish independently enforceable requirements related to unfair and deceptive environmental claims.

The Federal Register notice also discusses the types of information that the Commission would find helpful regarding specific environmental marketing claims, including carbon offsets and climate change, degradable, and recyclable.

The Agency is accepting comments until February 21, 2023. You can submit your comments online here.

California’s Updated Plastic Packaging Regulations – More “Clamshell” and Other Plastic Containers Now Regulated

Major updates to California’s rigid plastic packaging container (“RPPC”) regulations went into effect at the start of the new year, adding over 500 million plastic containers to the program’s regulatory reach.

The California Rigid Plastic Packaging Container Act was first passed in 1991 to encourage recycling and reuse and to reduce the amount of virgin resins used in product packaging. The Act has three  compliance options available for product packaging: manufacturers can  (1) ensure that their packaging is made of at least 25% post-consumer material, (2) choose packaging that is reusable or refillable at least five times, or (3) “source-reduce” the packaging weight by 10% within one year after the product is placed on the market in California. A fourth compliance option, based on the rate at which containers were recycled, was removed by statute in 2004 because of difficulties with accurately calculating the recycling rate on a timely basis.

According to CalRecycle, the state agency responsible for recycling and waste management, the RPPC regulations were amended to remove obsolete provisions, ensure consistency with statutory changes, and otherwise improve clarity and make it easier for product and packaging manufacturers to comply. For example, the updates aim to clarify the law while evening the regulatory playing field by making its application consistent across virtually identical types of packaging. The revisions broaden the definition of RPPC to include containers with non-plastic “incidental packaging elements,” such as non-plastic hinges or handles. In addition, an RPPC no longer must be capable of multiple re-closures, thus bringing all “clamshell” packaging within the meaning of the definition. Under the old regulations, RPPC regulations only applied to clamshell packages which could be reclosed – like those used for salad greens in the supermarket, while heat-sealed packages meant to be opened only once – like those containing small electronics – were not covered.

The revised regulations also significantly modify some aspects of the RPPC program’s various compliance options. The RPPC program’s reusable compliance option now specifically excludes containers meant to house a product permanently. In addition, resin-switching – substituting a lighter-weight plastic resin for a heavier one – is no longer an acceptable source reduction compliance option. The revised regulations also clarify that the post-consumer material compliance option cannot be met through the use of post-industrial material. The RPPC program’s definition of post-consumer material now covers obsolete and unsold products when used as feedstock, as well as rejected finished plastic packaging that has been disposed.

Another significant part of the update is a new three-step notification system for product makers, which CalRecycle developed to reduce companies’ regulatory burden. After receiving notice from CalRecycle, product makers can (1) register with the agency, which will (2) conduct pre-certification evaluation to determine if product packaging is compliant. Finally, (3) compliance certification is completed one year after pre-certification. Manufacturers have two years from initial notice before certification is due, which the agency hopes will provide more opportunities for manufacturers to resolve any compliance issues.

The process of amending the RPPC regulations began in 2007 and concluded when the revised regulations became effective on January 1, 2013. Information on the extensive rulemaking process is available on CalRecycle’s Rulemaking archive.

FTC Publishes Revised Green Guides

Green Marketing:

On October 2, 2012, the Federal Trade Commission (FTC) published long-awaited revised guidelines, known as the Green Guides, to aid marketers in properly making environmental benefit claims.   The FTC released its final revisions after a multiyear investigatory process, which included marketing surveys as well as reviewing comments from companies, trade organizations, government entities and individuals.  The the Green Guides lack the force of law, they provide guidance on how to avoid false or misleading environmental marketing claims in violation of Section 5 of the FTC Act, which prohibits unfair or deceptive acts or practices.

Below is a short summary of some of the major changes contained within the final revisions.

Highlights of the Newly Revised Green Guides

General Environmental Benefit Claims: The Green Guides caution against making general environmental benefit claims, such as using the words “green” or “eco-friendly,” without stating the basis for and qualifying these terms. The qualifying information must be clear, prominent and available at the point of sale—so consumers are able to see it before making their purchasing decisions.

Carbon Offsets: Marketers should use competent and reliable scientific evidence and comprehensive accounting methods to support their claims. However, an offset claim is inappropriate if the activity that makes the basis of the claim is required by law. If the offset purchase will pay for an emission reduction that will not occur for at least two years, then marketers are encouraged to disclose this information.

Certifications and Seals of Approval: The Green Guides also make recommendations for certifications and seals of approval used for endorsements. Marketers are encouraged to use environmental certifications or seals that convey the basis for the certification, but if these are not available, then they should clearly identify the product’s specific environmental benefits. Marketers are also encouraged to disclose their material connections with certifying organizations and must verify all express and implied claims when using third-party certification.

Compostable or Degradable:   “Compostable” claims must be based on competent and reliable scientific evidence, showing that product or packaging materials will become usable compost. Marketers should qualify if the product is not able to be composted in a safe or timely fashion. “Degradable” claims do not have to be qualified if the product or package can completely break down within a reasonably short amount of time, typically one year.

“Free-Off”:  “Free-of” claims can be made if the product contains trace amounts, background levels or less of the substance; the substance was not intentionally added to the product; and the amount contained with the product will not cause the type of harm linked to the substance.  The final revision differs from the standard articulated in the draft revision, and it will certainly create challenges for marketers.

 Non-Toxic:  For “non-toxic” claims, marketers should employ competent and reliable scientific evidence showing that the product is safe for people and the environment, unless otherwise qualified.  A product might be considered “non-toxic” under certain agency regulations designed to protect human health, but those regulations might not ensure protection for the environment.

Ozone-Safe:  Marketers are cautioned against misrepresenting that a product is safe for the atmosphere or ozone layer because the FTC finds that these can be unqualified general environmental benefit claims.

Recyclable and Recycled Content: The Green Guides also provide guidance regarding “recyclable” and “recycled content” claims. Recyclable claims should be qualified if recycling facilities are unavailable to 60 percent of consumers or communities to whom manufacturers sell a product. Recycled content refers to material recovered or diverted from waste during manufacturing or post-consumer use. Marketers are advised to qualify claims for products or packaging constructed partly from recycled material and specify the amount of partly recycled material contained therein. In addition, qualified claims should be made for products containing used, reconditioned or remanufactured parts.

Refillable: Marketers should not make unqualified “refillable” claims unless they identify a method to refill the product.

Renewable Materials and Energy : With claims like “made with renewable materials or energy,” the guides provide that marketers should qualify claims with specific information about the renewable materials used, such as what the renewable material is, how it is sourced and what qualifies it as renewable. Also, the Green Guides specify that marketers should qualify claims of renewable energy by specifying the source (e.g., wind or solar). If the power used to manufacture the product or any component of the product comes from fossil fuels, a renewable energy claim is inappropriate unless renewable energy certificates are purchased to link with energy use.

Source Reduction:  Finally, “source reduction” claims should be qualified with the amount of reduction and the basis for comparison from which the claim is made (e.g., “30 percent less runof f than our earlier model”).

 “Sustainable” and “Organic” Are Not Addressed:   The final revisions offer no guidance on claims regarding “sustainability” and whether a product is “organic.” The FTC claims that it lacks a sufficient basis or context to provide guidance on these claims because these terms have numerous meanings among consumers. However, the Green Guides caution marketers from making these types of claims without impunity.

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The complete final revisions to the FTC’s Green Marketing Guides are available here.   Additional information is also available on the FTC’s dedicated website