After ExxonMobil, can you trust the labels of plastic recycling companies?
Plastic is the fastest growing component of US municipal solid waste, and most of it ends up in the environment. Just 9% of plastic collected in municipal waste was recycled as of 2018, the most recent year for which national data is available. Some were incinerated in waste disposal plants or buried in landfills.
Manufacturers argue that better recycling is the right way to reduce plastic pollution. But critics argue that the industry often exaggerates how recyclable materials can be. In September 2024, beverage company Keurig Dr Pepper was fined US$1.5 million for claiming that its K-Cup coffee pods were not reusable after two major recycling companies said they could not process the cups. California is suing ExxonMobil, accusing the company of misrepresenting plastic products as recyclable.
Environmental law expert Patrick Parenteau explains why claims about recycling have confused consumers, and how upcoming guidelines from the US Federal Trade Commission could address the problem.
Why do manufacturers need guidance on what ‘recyclable’ means?
To say that a product can be recycled means that it can be collected, separated or otherwise retrieved from the river to be reused or made into other products. But defining exactly what it means is difficult for several reasons:
- Different US states have different recycling laws and guidelines, which can affect what is considered recycling in a particular area.
- The availability and quality of recycling infrastructure also varies from place to place. Even if a product can be recycled, the local recycling center may not be able to accept it because its equipment cannot.
- If there is no market demand for recycled material, recycling companies may not accept it.
What is the role of the Federal Trade Commission?
Public concern about plastic pollution has increased in recent years. A 2020 study found that globally, 91% of consumers are concerned about plastic waste.
Once plastic enters the environment, it can take a thousand years or more to decompose, depending on environmental conditions. Exposure by inhalation, inhalation or in drinking water poses a potential risk to human health and wildlife.
The Federal Trade Commission’s role is to protect the public from deceptive or unfair business practices and unfair competitive practices. Every year, it brings hundreds of lawsuits against individuals and companies for violating consumer protection and competition laws. These situations may include fraud, scams, identity theft, false advertising, privacy violations, anti-competitive behavior and more.
The FTC publishes references called Green Guides, designed to help advertisers avoid making environmental claims that mislead consumers. The guidelines were first issued in 1992 and revised in 1996, 1998 and 2012. Although the guidelines themselves are not enforceable, the commission can use them to prove that a claim is fraudulent, in violation of state law.
The guidance they provide includes:
- General principles that apply to all environmental marketing claims
- How consumers may interpret claims, and how advertisers can verify these claims
- How sellers can qualify their claims to avoid misleading consumers
The agency monitors nature-themed marketing for potentially misleading claims and checks compliance with the FTC Act of 1914 by referring to the Green Guides. Marketing that does not comply with the Green Guides may be considered unfair or deceptive under Section 5 of the FTC Act.
Courts also refer to the Green Guides when evaluating false advertising claims in private litigation.
Currently, the Green Guides say that advertisers must qualify claims that products are recyclable if recycling facilities are not available in at least 60% of consumers or communities where the product is sold.
How does the agency deal with reuse claims?
The FTC is reviewing the Green Guides and issued a request for public comment on the guidelines in late 2022. In May 2023, the agency convened a workshop called Talking Trash at the FTC: Recycling Claims and the Green Guides.
This meeting focused on 60% processing of recycling claims. It also addressed the potential confusion created by the “arrow-chasing” recycling symbol, which usually identifies the type of plastic components used in the product, using the numbers 1 to 7.
Many critics argue that consumers may see the label and assume that the product is recyclable, even though municipal recycling programs are not widely available for other types of tires. Some labels use a version of the symbol on products such as single-use grocery bags that are not accepted in most curbside recycling systems but can be dropped off at designated stores for recycling.
The FTC sought public comment on certain factors that make products recyclable. It also questioned whether unqualified recycling claims should be made when recycling facilities are available to the “substantial majority” of consumers or communities where the item is sold – even if the item may not ultimately be recycled due to market demand, budget constraints or other factors. .
What are companies and environmental activists saying?
Organizations representing environmental interests, recycling businesses and the waste and packaging industries have provided many suggestions for revising the Green Guides. For example:
- The US Environmental Protection Agency has urged the FTC to increase the limit on recyclability claims beyond the current 60% limit. The EPA said the products and packaging “should not be considered for recycling except in established markets where they can be reliably sold at a price higher than the cost of disposal.” It also recommended requiring companies’ recycling claims to be reviewed and certified by outside experts.
- The Consumer Brands Association, which represents the US Chamber of Commerce, the Plastics Industry Association and other commercial interests, has called for more research into public understanding of environmental marketing claims. To help companies avoid making misleading advertising claims, it urged the FTC to provide more detailed definitions, with examples of acceptable marketing.
- The Association of Plastic Recyclers has urged the FTC to increase enforcement against false and misleading claims for both recyclability and recycled content. It recommended providing stronger, more prescriptive guidance; to announce some examples from the market of deceptive presentations; and sending warning letters when companies appear to be making unsubstantiated claims. It also asked the FTC to keep its current limit on recyclability claims at 60% and review the Green Guides again within five years instead of 10.
- A coalition of environmental groups, including Greenpeace USA and the Center for Biological Diversity, urged the commission to codify the Green Guides into binding laws. They also say that for goods that need to be taken down in the store, companies must prove that processors can capture and reuse at least 75% of the goods.
The FTC has not set a date for publishing the final version of the updated Green Guides. All eyes will be on the agency to see how willing it is to comply with recycling requests from manufacturers in this $90 billion US industry.
Patrick Parenteau is a professor of law at Vermont Law & Graduate School.
This article is republished from The Conversation under a Creative Commons license. Read the first article.
