In its most recent effort to police the accuracy of environmental claims, the FTC took action against Down to Earth Designs, Inc. marketers of gDiapers, a product that consists of a reusable outer “pant” and removable inserts. The agency alleges that the company ran afoul of the requirements for environmental claims laid out in the FTC’s “Green Guides” by making unqualified claims that the gDiaper inserts and wipes are plastic free, compostable, and biodegradable when flushed or thrown out.
The complaint alleges that the unqualified biodegradable claims are misleading because the majority of the inserts will eventually end up in a landfill, either because users throw them in the trash or flush them, where they are subsequently filtered out of the water as part of the treatment process and sent to a landfill. The FTC takes the position that once in a landfill, it is impossible for a material to degrade within a reasonably short period of time. All regrettable diaper puns aside, there are lessons to be learned from this, and other recent green claim enforcement actions, for companies that wish to avoid getting in deep… trouble.
- Biodegradable claims remain a hot enforcement subject. In addition to this case, back in October, 2013, the FTC announced a string of environmental claim enforcement actions, five of which addressed biodegradable plastic claims. Final orders in three of those cases were approved just this month.
- The agency was not kidding when they advised marketers in the guides to carefully qualify their green claims. Whether consumers really do interpret an unqualified biodegradable claim to mean that the product will degrade even if they wrap it in a plastic garbage bag and surround it with other plastic garbage bags is unclear. However, the agency consistently assumes in its enforcement actions that consumers will interpret environmental claims broadly in the absence of qualification.
- Companies must consider typical methods of disposal in framing their degradability claims. Down to Earth Designs is not only being held to account for whether their product is biodegradable in a vacuum, but how down the road actions, like consumer choice of disposal method or waste water treatment systems, will affect whether the product is likely to, in fact, degrade. Infrastructure limitations, dependence on landfills, shortages of recycling facilities capable of handling a certain type of technically recyclable material are all factors that could render an otherwise true green claim misleading for want of a qualification.
As for Down to Earth Designs, the gDiapers website has been changed to get rid of the offending content. One can only assume it now also smells of baby powder.