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FLEXO Magazine : March 2009
--ROCESSES It's Not Easy Talking About Being Green FTC Increases Enforcement and Restriction of Eco-friendly Claims By Mark C. Hammond T he number of products marketed using environmentally- themed or "green" advertising has exploded, as have requests from print buyers relating to the environmental attributes of printed materials, including packaging, and the environmental performance of printers in general, especially flexographers. This is no co-incidence. A recent survey has found that 40 percent of Americans actively seek environmentally friendly products when shopping. In addition, packaging buyers and retailers are increasingly looking to do business with "green" or "sustainable" printers. In fact, the Forest Stewardship Council (FSC) recently testified in a public hearing that requests for its chain-of-custody certificates (i.e. paper sourcing certificates) have increased more than four-fold over the last five years. The opportunities and risks for printers making green market- ing claims over the next two years is magnified, as pending new regulations intersect with a new president that has promised to put "force" back into regulatory enforcement. The green market- ing landscape will soon be rapidly changing. Within the last few months, the Strategic Green Printing (SGP) Partnership, a collaborative effort founded by the Flexographic Technical Association, along with Printing Industries of America, National Association of Printing Ink Manufacturers, and Specialty Graphic Imaging Association, officially opened its application process for printers to become registered "SGP Printers." While the SGP Partnership operates an online registry to allow print buyers and customers to identify registered SGP Printers, the larger issue of green marketing claims made through advertising and direct customer contact is (intentionally) not addressed by the SGP Partnership. The scope and permissibility of marketing claims have long been subject to regulation by u.S. Federal Trade Commission (FTC), which implements the prohibition on "decep- tive acts or practices" set forth in Section 5 of the FTC Act, princi- pally through its Bureau of Consumer Protection division. THE CLAIM GAME Environmentally-themed or "green" marketing claims are principally regulated by the FTC, through regulations known as the Green Guides. The Green Guides are administrative interpre- tations of laws enforced by the FTC, and provide advice to busi- nesses and consumers on allowable environmental marketing claims. The Green Guides have been under review since late 2007 - and revisions are expected to be formally proposed in the Federal Register within the next four to eight months. The Green Guides, formally known as the Guides for the Use of Environmental Marketing Claims, were designed to help mar- keters avoid making claims that the agency would challenge as unfair or deceptive under Section 5 of the FTC Act. The Green Guides also influence state and private false advertising litigation, and some states (California, for example) have requirements that go beyond those found in the Green Guides. The guides were first issued in 1992 and were revised most recently in 1998. The current guides fill almost one dozen pages in the U.S. Code of Federal Regulations and are explained at length in a 36-page FTC brochure. The current Green Guides do two things: they outline general principles that apply to all environmental marketing claims, and they provide guidance and examples regarding certain specific claims. They advise, for example, that qualifications and disclo- sures should be sufficiently clear and prominent to avoid decep- tion; marketers should indicate whether their claims apply to the product, the package or a component of either; claims should not overstate an environmental attribute or benefit expressly or by implication; and marketers should present comparative claims in a manner that makes the basis for comparison sufficiently clear to avoid deception. Application of each of these general principles to actual advertising is not always straightforward; the general guidelines include a variety of nuanced, and occasionally counter- intuitive, ways. The current FTC guidance addresses such terms as "environ- mentally friendly," "recyclable," "recycled content," "biodegrad- able," "degradable," "compostable" and "refillable" to claim that packaging is green. Illustrative examples provide safe harbors for marketers who seek certainty about how to make claims, although many other approaches may also be lawful. The guides advise, for example, that to claim a product is biodegradable, it must break down and return to nature, i.e., decompose into elements found in nature, within a reasonably short period of time after custom- ary disposal, unless the claim is qualified. As most in the flexible packaging industry are already aware, the Green Guides include a number of provisions specific to packaging materials. Application of certain standards, such as claims relating to recyclability, varies based on the availability of MARCH 2009 www.f I exog ra p hy.o rg FLEXO
Sustainable Winter 2009