FTC launches review of plastics recyclability marketing claims

Recyclability claims around plastic packaging could soon face much more scrutiny, with the Federal Trade Commission voting Dec. 14 to start long-awaited revisions to its Green Guides, the government's environmental marketing rules.

FTC commissioners voted 4-0 at an open meeting to launch the first update of those rules in a decade, a decision that was praised by both plastics industry and environmental groups, although they may have very different visions of what the agency should do.

The guides cover topics much broader than plastics, overseeing marketing claims in areas like carbon footprints and organics.

But FTC Chair Lina Khan did highlight one plastics recycling topic in a written statement, suggesting that will be one focus of its work.

"Recent reports suggest that many plastics that consumers believe they're recycling actually end up in landfills," Khan said. "One question, then, is whether claims that a product is recyclable should reflect where a product ultimately ends up, not just whether it gets picked up from the curb."

An FTC news release said it was interested in public comment on how the terms "recyclable" and "recycled content" should be used in marketing, including how consumers understand terms like "pre-consumer" and "post-industrial" recycled content and what other methods could be used to substantiate recycled-content claims.

Khan, who was appointed by President Joe Biden, said consumers are confused by marketing greenwashing claims.

"Many Americans want to know about the environmental impact of the products they are looking to buy, and businesses as a result are routinely making claims about the sustainability and carbon footprint of their products and manufacturing," she said. "But for the average consumer, it's really impossible to verify these claims and so it's critical that businesses are making truthful claims and representations."

The American Chemistry Council said it supports the FTC review.

Prapti Muhuri, associate director of plastics sustainability at ACC, said during the online hearing the new guides should recognize chemical recycling technology and mass-balance claims, since they will be important to meeting ACC's proposal to Congress for 30 percent recycled content in plastic products by 2030.

"In order for these ambitious targets to be met, we need to accelerate the growth and innovation and technologies, like advanced or chemical recycling," she said. "These must be supported by credible tracking mechanisms such as mass-balance chain of custody that inspires consumer trust."

ACC also urged FTC to keep its current Green Guides threshold that products need to be recycled in 60 percent of communities to be claimed as recyclable.

An environmental group active in plastics recyclability marketing claims also welcomed the FTC review but urged the agency to take a much tougher line and turn the guides into stronger, more enforceable standards.

"The FTC must do more than just review and update the guides," said Jan Dell, founder of the Last Beach Cleanup. "They should do a rule-making action to turn them into enforceable laws.

"The lack of national laws are a shame for Americans," Dell said. "In other countries — the [United Kingdom], Canada the Netherlands — the federal agencies are suing companies for false claims on plastic recycling labels and carbon/climate claims and protecting their consumers."

Dell's group was involved in writing an October report from Greenpeace that surveyed U.S. recycling programs and found that only two types of plastic packaging — PET bottles and high density polyethylene bottles — are widely recycled enough to meet the FTC's 60 percent threshold and be labeled as recyclable.

The report found that for all other types of plastic packaging, including polypropylene and expanded polystyrene, too few communities were able to effectively recycle them to meet FTC standards. She urged FTC to crack down on recyclability labeling.

"For far too long, it has been the wild, Wild West of product claims and label with no sheriff in town," Dell said.

The Association of Plastic Recyclers also said it wants FTC to revise the green guides, to make recycling labels clearer for consumers and help make recycling streams less contaminated.

"Proper labeling guidelines by the FTC will go a long way toward eliminating a segment of confusion consumers face in trying to determine if their packaging is recyclable," said APR President and CEO Steve Alexander.

He said APR would be submitting detailed comments and at a panel during a conference earlier this year said new Green Guides could have a "major, major impact" on cleaning up recycling streams.

There's a lot of debate about what FTC could do, with some suggesting the agency should look to the U.S. Plastics Pact's list of problematic materials or the work of a California recycling commission for ideas on how to tighten marketing rules to limit questionable recyclability claims.

The Consumer Brands Association said it's important to give the guides a "comprehensive" update to bring clarity to what companies can and can't say, given different state actions and lawsuits.

"There is a lack of clarity for consumer and regulatory certainty for industry that has been exacerbated by lack of uniform federal standards, a patchwork of state approaches to environmental claims and recycling systems, as well as litigation," CBA said in a Dec. 12 letter to FTC. "Taken as a whole these leave consumers, industry and the environment underserved."

Dell said a law passed in California in 2021, known as Senate Bill 343, could set up a tougher standard than FTC Green Guides and could wind up becoming a de facto national standard if the revised Green Guides do not go far enough.

That law could limit the use of chasing arrows in marketing and gives the agency CalRecycle the authority to say what products can and cannot be labeled as recyclable in the state.

A legislative analysis of that law said that only PET and HDPE bottles would likely meet criteria to be considered recyclable.

"FTC should follow California's approach in SB-343," Dell said. "If FTC publishes only a guide or laws weaker than California, then California laws and labels will prevail and become the law of the land because products are labeled nationally."

California agencies have been active around the topic. For example, Attorney General Rob Bonta in November sent letters to plastic bag makers to prove their claims of recyclability or face potential fines.

The FTC vote does not immediately begin the review process. The agency said it would publish a formal notice in mid-January and take comments for 60 days on how it should update the guides.