FTC: Warning Letters to Manufacturers of Dog Waste Bags Suggest They May Be in Deep Doo-Doo

For the dog lovers of the world, this one is for you. The Federal Trade Commission (FTC) recently sent “warning letters” to 20 manufacturers and marketers of dog waste bags that dog owners, walkers, and conscientious others use to pick up after their pets and then discard. FTC expresses in the letters concern with the environmental claims for “biodegradable” or “compostable” that FTC alleges fail to conform with the updated Guides for the Use of Environmental Marketing Claims (Green Guides), 16 C.F.R. Part 260. As discussed below, FTC advises the recipients of the letters to review their marketing claims and advise the Agency of how they intend to review or remove “misleading” claims.

Background

The Green Guides are intended by FTC to help marketers ensure that the claims they make about the environmental attributes of their products are “truthful and non-deceptive.” While the Green Guides are administrative interpretations of law, and are not independently enforceable, they describe the types of environmental claims FTC may find deceptive under Section 5 of the FTC Act. Under Section 5, FTC can take enforcement action against deceptive claims, which could lead to FTC orders prohibiting deceptive advertising and marketing and fines if those orders are later violated. The Green Guides emphasize and provide guidance to ensure that companies making environmental claims, whether express or implied, limit claims to the particular product attributes for which the marketer has substantiation. FTC issued long-awaited revisions to the Green Guides in October 2012. More information regarding the revised Green Guides is available in Bergeson & Campbell, P.C.’s (B&C^®) October 3, 2012, memorandum.

FTC has been quick to demonstrate that it really does intend to enforce Section 5 of the FTC Act. On October 29, 2013, FTC announced six enforcement actions concerning misleading and unsubstantiated environmental marketing claims. In a case imposing a $450,000 civil penalty, FTC filed a complaint and consent order against a company for violating a 1994 FTC order prohibiting it from making unsupported green claims for its paper plates and bags. In the five other actions, FTC addressed biodegradable plastic claims for the first time. In one case, FTC filed a complaint against a company for marketing an additive that it claims makes plastic products biodegradable. In the other four cases, FTC announced complaints and proposed consent orders against companies that marketed various plastics with allegedly false and unsupported claims that their products were biodegradable. These cases are in addition to recent settlements with paint manufacturers and mattress manufacturers regarding claims their products were free of volatile organic compounds (VOC). As discussed below, all these cases, and the related guidance documents that FTC has issued, telegraph to the business community FTC’s keen interest in ensuring compliance with FTC’s Green Guides. More information is available in B&C’s memorandum, “FTC Gets Tough on Green Guides and ‘Cracks Down’ on Misleading and Unsubstantiated Environmental Marketing Claims.”

FTC’s latest foray into enforcing the Green Guides is directed at the manufacturers and marketers of the doggie bags that are used to pick up after dogs. According to FTC’s Business Blog:

Considerate dog owners (and ones who want to comply with local laws) use the bags to tidy up after Fido. That’s where the problem starts — because once they’ve been used, most of those bags go into the trash. And most trash goes into landfills. And most stuff in landfills doesn’t go anywhere for a long, long time.

The Green Guides go into considerable detail regarding degradable and compostable claims. “A marketer making an unqualified degradable claim should have competent and reliable scientific evidence that the entire item will completely break down and return to nature (i.e., decompose into elements found in nature) within a reasonably short period of time after customary disposal. . . . It is deceptive to make an unqualified degradable claim for items entering the solid waste stream if the items do not completely decompose within one year after customary disposal.” The Green Guides go on to say: “Unqualified degradable claims for items that are customarily disposed in landfills, incinerators, and recycling facilities are deceptive because these locations do not present conditions in which complete decomposition will occur within one year.”

The warning letters identify a similar problem with marketing the bags as “compostable.” According to the Green Guides, unqualified “compostable” claims may be deceptive if the item cannot be composted safely, timely, and easily in a home compost pile or device; if the bags are likely to be disposed of in a landfill; or if compost facilities in the area do not typically accept the item in question. According to FTC, most commercial and municipal composting facilities do not accept dog waste in their systems and home composting requires careful processing to avoid possible health hazards.

As noted, the warning letters are just that — a “wake-up” call to the recipient that FTC has reason to believe the claims made are non-compliant with FTC Act Section 5 and the claims should be revised or removed to avoid further enforcement scrutiny.

Commentary

These recent enforcement letters telegraph yet again FTC’s commitment to enforcing FTC Act Section 5. The Commission has stated often and firmly that it takes the Green Guides very seriously, and the numerous enforcement initiatives it has pursued over the past several years would appear to support that commitment. While arguably the business cohort that is on the receiving end of these letters might inspire a chortle or two, that fact alone might inspire the higher press visibility FTC hopes to achieve to make its point. To stay out of FTC enforcement doo-doo, comply with the Green Guides!