The Federal Trade Commission is apt to tighten the screws a few turns on some provisions in its environmental guidelines when the Commission puts them on its workbench later this summer. The FTC promised to review the voluntary guidelines three years after their establishment. That date will be July 28, 1995. Among the key issues likely to come up are: * Whether to require different label language for packages made from pre- and post-consumer waste, * Whether to change the wording about placement of the Society of the Plastics Industry resin code, * Whether to allow recently-popular recyclability claims such as "Please Recycle." Early indications are the packaging community will provide discordant viewpoints. "These guidelines are a case of over-regulation," says Jack Lewis, vice president of the Paperboard Packaging Council (PPC). But Gifford Stack, vice president of environmental affairs for the National Soft Drink Assn., says, "The guidelines, for our industry, have worked very well." Stack says the three major areas of controversy have been the pre- and post-consumer recycled content distinction, the use of the SPI code, and lifecycle assessment, where a company alleges that a product or package is manufactured using less energy than a prior iteration, or a competitor's package. "I don't think you'll find major changes in any of these areas," Stack says. Enforcement actions Over the past three years, nearly 30 companies have run afoul of the guidelines, which are voluntary. But the FTC uses them as the basis for enforcement actions under Section 5 of the FTC Act. In a number of these enforcement actions, companies failed to adequately "qualify" packaging recyclability claims. These lapses have resulted only in the companies signing consent decrees. The FTC has issued no fines. The FTC guidelines go way beyond recyclability and recycled content. They touch on when a package or product can be labelled "biodegradable," "ozone safe," "refillable," and other terms. The guidelines give a number of examples in each category, but they're sometimes tortuous to follow. When he spoke to industry officials at a breakfast meeting sponsored by the Council on Packaging in the Environment (COPE) on April 18, Lee Peeler, associate director of the division of advertising practices at the FTC, said he did not expect major changes in the guidelines. He acknowledged, however, that the FTC's recyclability standard is "fuzzy and pretty tough to meet." The FTC demands that such claims be "qualified," such as "recyclable where facilities exist." But even that claim would be unallowable if an insignificant number of communities nationwide had recycling facilities. Clarifying resin code issue There were a couple of questions from people who attended the breakfast about placement of the SPI resin code. The guidelines say the code must be in an "inconspicuous" location, like the bottom of a bottle. But if the code is put on the top of the bottle, or in what the FTC thinks is a prominent place, Peeler added, "it would set off warning bells." Jack LaCovey, spokesman for the Society of the Plastics Industry, says, "We are certainly going to be following the FTC review. But we have not made a decision on what our position will be on the code, or any other matter." Jack Lewis of the PPC has already opened fire on the guidelines. He says, "Making a distinction between whether material is pre- or post-consumer is ridiculous." Lewis contends it makes no difference whether paperboard packagers, for example, use recycled newspaper that has been collected, unread, from newsstands, or from the front of someone's home after it has been in a homeowner's hands. Actually, the guidelines do not require a package to distinguish between pre- or post-consumer waste when making a recyclability claim. Nor do the percentages of each used in the package have to be disclosed. But Kevin Bank, an FTC attorney, says he expects the FTC to come under pressure to change the guidelines to require those disclosures. 'Exhortation claims' The FTC will also look at the acceptability of a new type of recyclability claim that has arisen, where a company puts a term such as "Please Recycle" on a product or package that is not recyclable. The FTC guidelines do not address that instance, says Bank. These kinds of "exhortation" claims are on the rise. Robert Mayer, chairman of the Department of Family & Consumer Studies at the University of Utah, has been conducting grocery store checks in 16 major supermarket categories since the guidelines went into effect in 1992. Four other academics in New York, NY, Champaign-Urbana, IL, San Diego, CA, and Corvallis, OR have been doing exactly the same thing. The five-city study has looked at how manufacturers have altered their product and package labeling over that period. In a Technical Report dated April 21, 1995, Mayer and his colleagues write that the number of recyclability claims rose only modestly in the two years after September 1992. But "virtually all of the increase" came in the exhortation category. Mayer says there has been "dramatic improvement" in the recycled content/source reduction claims made both for products and packaging. Both the number of claims, and their specificity, have increased. He notes that packaging claims are more common than product claims since many products, such as soft drinks, cannot be recycled. That April Technical Report found that only about 10 percent of recyclability claims are well qualified, and those kinds of shortcomings have led to a number of FTC enforcement actions. Exceeding the limits For example, on January 19, 1995, Creative Aerosol Corp. of Freehold, NJ, signed a consent decree with the FTC promising to stop making misrepresentations about the extent to which its products and packages can be recycled. The company will have to make certain disclosures to qualify claims that any high-density polyethylene cap or aluminum aerosol can is recyclable. In April 1994, LePage's, Inc., of Pittsburgh, PA, signed a consent decree concerning its cellophane tape made from wood pulp and adhesive material. The tape was sold with a hard, clear non foam polystyrene plastic dispenser. The tape and dispenser were attached to a paperboard backing card for sale to the public. The FTC went after LePage's for both product and package claims. On the latter score, the company claimed the package was recyclable. The FTC admitted that was true. But the problem was that the vast majority of consumers cannot recycle the package because there are only a few collection facilities nationwide that will accept paperboard backing cards for recycling. Recyclability claims also tripped up America's Favorite Chicken Co. of Atlanta, GA, which owns the Church's and Popeye's fast-food chains. The two chains had used the "three chasing arrows" on their food packaging, plus the word "recyclable." While the paper could theoretically be recycled, the FTC jumped on AFC because virtually no collection facilities accept food-contaminated paper for recycling. Ellen Hartman, a spokeswoman for AFC, says the company would like to use recyclable food wrapping, and is still looking for a solution. Politics of change Whether those roadblocks should be cleared away, or added to, will be based on responses to the Federal Register notice that FTC is expected to publish in late July. Kevin Bank says the Commission will decide based on the volume of comments whether to hold public hearings, and whether to make changes. If the FTC does decide to make changes, there could be a public hearing to air those proposals. The Republican-controlled Congress has sent a clear message to all federal agencies that over-regulation-of which, says PPC's Lewis, the environmental guidelines are a clear example-is a political sin. And in fact, most federal agencies have gotten the message, and are deep into "Reinvention" exercises, feverishly looking for existing regulations to trim back.
