FTC Staff Comment Before the Division of Solid Waste, New York State Department of Environmental Conservation Concerning Recycling Emblems

UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION
WASHINGTON. D.C. 20S80
Division of Advertising Pnctices
COMMISSION 	AUTHORIZED
March 	13, 	1995
Mr. 	Peter M. 	Petit, 	P.E.
Division 	of 	Solid Waste
New York 	State 	Department 	of 	Environmental 	Conservation
50 	Wolf 	Road 	- 	Room 	228
Albany, 	New York 	12233-4015
Re: 	Revised 	Proposed Amendments 	to 	Part 	368 	of 	Title 	6
NYCRR 	Relating 	to 	the 	Regulations 	of 	Official 	New York
State 	Recycling 	Emblems
Dear Mr. 	Petit:
This 	letter 	responds 	to 	your 	December 	12, 	1994 	solicitation
for 	public 	comments 	on 	the 	above 	described 	revised 	proposal, 	as
well 	as 	to 	the 	December 	1994 	Responsiveness 	Summary To 	Comments
Made 	At 	July 	1993 	Workshops 	January 	1994 	Workshops 	March 	1994
Public 	Hearing 	On 	Proposed Amendments 	To 	6 NYCRR 	Part 	368
Recycling 	Emblems 	("Responsiveness 	Summary").l 	The 	revised
proposed 	standards 	govern 	the 	use 	of 	official 	New York 	State
recycling 	emblems 	and 	the 	use 	of 	the 	terms 	"recycled,"
"recyclable," 	and 	"reusable" 	in New York 	State. 	Although 	your
solicitation 	requested 	comment 	by 	January 	30, 	1995, 	we 	understand
that 	you 	may 	still 	consider 	our 	comment 	if 	it 	is 	received 	after
that 	date.
As 	you 	know, 	on 	July 	28, 	1992, 	in 	order 	to 	help 	reduce
consumer 	confusion 	and 	prevent 	the 	false 	or 	misleading 	use 	of
environmental 	terms 	such 	as 	"recycled," 	"recyclable," 	and
"reusable," 	the 	Federal 	Trade 	Commission 	issued 	its 	Guides 	for
the 	Use 	of 	Environmental 	Marketing 	Claims 	{"Environmental
Marketing 	Guides"}, 	16 	C.F.R. 	Part 	260. 	In 	these 	guides, 	the
Commission 	presented 	guidance 	of 	how 	it 	may apply 	§ 	5 of 	the
Federal 	Trade 	Commission Act, 	which 	generally prohibits 	unfair
and 	deceptive 	advertising, 	to 	environmental 	advertising 	and
labeling 	claims. 	We 	are 	enclosing 	a 	copy 	of 	the 	Environmental
Marketing 	Guides.
The 	staff 	0: 	the 	Bureau 	of 	Consumer 	Protection 	of 	the
Federal 	Trade 	Commission offer 	the 	following 	comments 	for 	your
1 	The 	comments 	represent 	the 	views 	of 	the 	staff 	of 	the
Bureau 	of 	the 	Consumer 	Protection 	of 	the 	Federal 	Trade 	Commission
and 	do 	not 	necessarily 	represent 	the 	views 	of 	the 	Commission 	or
any 	individual 	Commissioner.

Mr. 	Peter M. 	Petit, 	P.E.
Page 	2
consideration 	concerning 	issues 	raised 	by 	the 	proposed 	changes 	in
Part 	368 	of 	Title 	6 NYCRR. 	First, 	the 	proposed 	revision 	to 	the
New York 	State 	recycled 	content 	emblem would 	replace 	the
requirement 	of 	a 	total 	recycled 	content 	disclosure 	in 	favor 	of 	a
disclosure 	of 	the 	minimum post-consumer 	material 	content. 	The
resulting 	emblem would 	consist 	of 	a 	three 	chasing 	arrows 	sYmbol
below which 	in 	large 	capital 	letters 	would be 	the 	word 	"RECYCLED"
and 	below 	that 	would 	be 	a 	disclosure 	as 	to 	the 	amount 	of 	post-
consumer 	recycled 	content. 	In 	§ 	G.5 	of 	the 	Environmental
Marketing 	Guides, 	16 	C.F.R. 	§ 	260.7(e), 	the 	Commission 	states
that 	unqualified 	claims 	of 	recycled 	content 	imply 	to 	consumers
that 	a 	product 	or package 	is 	made 	entirely 	from 	recycled 	material
(excluding minor 	incidental 	components). 	The 	relevant 	question,
therefore, 	is 	whether 	the 	proposed 	regulation 	adequately
qualifies 	the 	use 	of 	the 	word 	"recycled."
According 	to 	the 	Responsiveness 	Summary, 	one 	of 	the 	comments
you 	received 	stated:
A label 	on 	a 	printing 	and 	writing 	paper 	stating 	the
following:
RECYCLED 	PAPER
25\ 	POST-CONSUMER 	FIBER
would be 	authorized 	under 	the 	regulations 	and 	would
actually 	constitute 	two 	separate 	claims. 	The 	statement
"Recycled 	Paper" 	is 	an 	unqualified 	claim 	implying 	that
the 	paper 	is 	100% 	recycled 	content. 	The 	statement 	"25%
Post-Consumer 	Fiber" 	is 	a 	secondary 	claim which
modifies, 	but 	does 	not 	define 	the 	first 	claim. 	An
environmental 	claim made 	in 	this 	manner 	is 	misleading
and 	in 	potential 	violation 	of 	the 	FTC 	guidelines.
The 	response 	to 	this 	comment 	was:
Part 	368 	has 	been modified 	to 	require 	that 	the 	post-consumer
percentage 	be 	indicated. 	Our 	interpretation 	of 	the 	state-
ment 	presented 	is 	that 	the 	paper 	only contains 	25 	percent
post-consumer 	fiber 	and 	in 	the 	absence 	of 	any 	number,
nothing 	else. 	With 	the 	post-consumer 	content 	identified we
do 	not 	believe 	that 	there 	is 	an 	implication 	that 	the 	paper
is 	100% 	recycled.
Although we 	currently have 	no 	empirical 	evidence 	of 	how 	consumers
perceive 	this 	claim, 	we 	too 	are 	concerned 	that 	the 	proposed
revised 	recycled 	emblem with 	its 	disclosure 	might 	mislead 	con-
sumers 	to 	believe 	that 	the 	product 	or package 	is 	made 	entirely 	of
recycled material 	of 	which 	the 	specified percentage 	consists 	of

Mr. 	Peter M. 	Petit, 	P.E.
Page 	3
post-consumer 	material. 2 	In 	order 	to 	ensure 	that 	consumers 	will
not 	be 	misled 	by 	the 	proposed 	revised 	recycled 	emblem, 	you 	may
want 	to 	consider 	conducting 	consumer 	research 	to 	determine 	what
message 	or messages 	are 	conveyed by 	the 	proposed 	revised 	recycled
emblem. 	Such 	research 	also 	may 	assist 	in 	improving 	the
communication 	of 	the 	emblem 	in 	this 	and 	other 	respects. 3
A second 	concern 	is 	that 	the 	proposed 	regulations 	may be
interpreted 	to 	mean 	that 	even 	a 	disclosure 	of 	post-consumer
recycled 	content 	is 	not 	required when 	the 	term 	"recycled" 	is 	used
independent 	of 	the 	emblem and when 	the 	product 	or package 	con-
tains 	the 	specified minimum percentage 	of 	post-consumer material
as 	described 	in 	section 	368.4(a) 	of 	the 	regulations. 	Such 	an
interpretation 	appears 	possible 	because 	section 	368.2(1) 	of 	the
proposed 	regulations 	states 	that
"Recycled" 	means 	a 	package 	or 	product 	containing a 	spe-
cified 	minimum 	percentage 	by weight 	of 	post-consumer
material 	as 	described 	in 	subdivision 	368.4(a) 	of 	this
Part, 	shown 	in 	Table 	1, 	and 	approved 	by 	the
commissioner.
As 	discussed 	above, 	in 	§ 	G.S 	of 	the 	Environmental 	Marketing
Guides, 	16 	C.F.R. 	§ 	260.7(e), 	the 	Commission 	states 	that
unqualified 	claims 	of 	recycled content 	imply 	to 	consumers 	that
the 	product 	or 	package 	is 	made 	entirely 	from 	recycled material
(excluding minor 	incidental 	components). 	We 	are 	concerned 	that
the 	proposed 	regulation 	may 	therefore 	inadvertently 	sanction
misleading 	"recycled" 	claims. 	While 	the 	Responsiveness 	Summary
states 	that 	the 	amended 	regulations 	\Jill 	require 	the 	display 	of
post-consumer 	content 	with either 	the 	emblem 	or 	the 	term
"recycled," 	we 	could 	not 	find 	any 	such 	requirement 	for 	the 	use 	of
the 	term 	"recycled" 	in 	the 	amen~-~ regulation.·
A 	third 	concern 	involves 	the 	proposed 	authorization 	of 	a
recyclable 	emblem 	for 	certain broad 	categories 	of 	products 	or
2 	We 	would 	also 	be 	concerned 	by a 	similar 	claim made
outside 	the 	context 	of 	the 	official 	New York 	State 	recycled
emblem.
3 	If 	such 	research 	suggests 	that 	consumers 	may be 	deceived
by 	the 	emblem 	as 	currently designed, 	you 	might 	want 	to 	consider
modifying 	the 	emblem 	to 	also 	include 	a 	disclosure 	of 	the 	total
recycled 	content.
4 	You 	may want 	to 	consider 	conducting 	consumer 	research
prior 	to 	revising 	section 	368.2(1) 	of 	the 	proposed 	regulations 	to
ensure 	that 	the 	required 	disclosures 	address 	the 	possible
deception 	concerns 	raised 	here 	and 	above.

Mr. 	Peter M. 	Petit, 	P.E.
Page 	4
packages, 	based 	on 	the 	recycling 	rate 	of 	the 	overall 	category.
We 	believe 	it 	may be 	helpful 	to 	share 	the 	Commission's 	experience
with 	you 	on 	this 	issue. 	In 	§ 	G.4 	of 	the 	Environmental 	Marketing
Guides, 	16 	C.F.R. 	§ 	260.7(d}, 	the 	Commission 	states 	that 	a
product 	or package 	that 	is 	made 	from 	recyclable 	material, 	but,
because 	of 	its 	shape, 	size 	or 	some 	other 	attribute, 	is 	not
accepted 	in 	recycling programs 	for 	such material, 	should not 	be
marketed 	as 	recyclable. 	In 	fact, 	this 	issue 	has 	been 	the 	subject
of 	several 	Commission 	cases. 	Keyes 	Fibre 	Company, 	C-3512, 	August
2, 	1994 	and AJM 	Packaging 	Corp., 	C-3508, 	July 	20, 	1994 	involved
recyclable 	claims 	for 	paper plates. 	White 	Castle 	Systems. 	Inc.,
C-3477, 	January 	13, 	1994 	and America's 	Favorite 	Chicken 	Co., 	C-
3504, 	July 	5, 	1994 	involved 	recyclable 	claims 	for 	paper 	fast 	food
packaging. 	Even 	though 	the 	plates 	and 	fast 	food 	packaging 	are
made 	from 	types 	of 	paper which 	might 	be 	recyclable 	in 	the 	few
communities 	that 	recycle 	mixed paper, 	they 	are 	in 	fact 	seldom
recycled because 	ordinary use 	renders 	them 	food-contaminated. 	We
are 	enclosing 	the 	Commission 	complaints 	and 	consent 	agreements 	in
these 	cases. 	Staff 	believes 	that 	similar 	issues 	may 	arise 	within
some 	of 	the 	categories 	for 	which 	recyclable 	claim 	approval 	may 	be
sought 	from 	New York.
We 	acknowledge 	that 	the 	request 	for 	authorization 	of 	section
368.4(b) (2) 	addresses 	this 	concern, 	and may do 	so 	adequately.
You 	may 	wish, 	however, 	to 	consider 	revising 	the 	proposed
regulation 	to 	clarify 	that- approval 	will 	not 	be 	granted 	to 	a
product 	or package 	that 	falls 	within 	an 	approved 	material
category 	if 	the 	product 	or package 	is 	not 	accepted 	in 	recycling
programs 	because 	of 	its 	shape, 	size 	or 	some 	other 	attribute.
It 	also 	appears 	to 	us 	that 	section 	368.S(a) (2) 	of 	the
regulations 	may 	conflict 	with 	the 	authorization 	requirement 	of
section 	368.4(b) (2). 	Section 	368.5(a} (2) 	.:;tates 	that, 	"An 	emblem
may be 	used 	for 	the 	following 	purposes 	without 	having 	first
received 	written 	approval 	from 	the 	department 	for 	such 	use:
promotion 	of 	a 	package 	or 	product 	after 	the 	department 	has
authorized 	the 	use 	of 	the 	emblem on 	or 	for 	that 	material. II
(emphasis 	added) 	By using 	the 	word 	IImaterial,lI 	section
368.S(a) (2) 	could provide 	a 	means 	for 	products 	or packages 	that
fall 	within 	the 	approved 	material 	types, 	but 	that 	are 	not 	in 	fact
recyclable, 	to 	use 	the 	recyclable 	emblem. 	We 	recommend,
therefore, 	that 	you 	consider 	replacing 	the 	word 	"material" 	with
the 	phrase 	"package 	or product" 	in 	section 	368.5(a} (2).
Finally, 	we 	note 	our 	support 	for 	the 	apparent 	purpose 	of 	the
proposed 	revisions 	to 	Sections 	368.1(a} 	and 	(b), 	to 	make 	clear
that 	the 	regulation of 	usage 	applies 	only under 	specified
conditions. 	However, 	we 	would 	suggest 	that 	the 	phrasing 	used 	to
describe 	the 	regulations' 	application - 	"outside 	the 	context 	of 	a
specific, 	clear, 	accurate 	and 	nonmisleading 	statement" 	- 	may
raise 	questions 	about 	the 	intended 	coverage. 	Perhaps 	other 	terms

Mr. 	Peter M. 	Petit, 	P.E.
Page 	5
would 	better 	define 	the 	coverage 	and 	promote 	the 	intended
consistency between 	the 	New York 	regulation 	and 	the 	Federal 	Trade
Commission's 	Environmental 	Marketing 	Guides.
We 	hope 	you 	find 	these 	comments 	useful.
Very 	truly 	yours,
~ ,lU ~{,dJvv..-
C. 	Lee 	Peeler
Associate 	Director
Division 	of 	Advertising 	Practices
Enclosures