Can you trust companies that say their plastic products are recyclable? US regulators may crack down on deceptive claims

What is the Federal Trade Commission’s role?

Public concern about plastic pollution has skyrocketed in recent years. A 2020 survey found that globally, 91% of consumers were concerned about plastic waste.

Once plastic enters the environment, it can take 1,000 years or more to decompose, depending on environmental conditions. Exposure through ingestion, inhalation or in drinking water poses potential risks to human health and wildlife.

The Federal Trade Commission’s role is to protect the public from deceptive or unfair business practices and unfair methods of competition. Every year, it brings hundreds of cases against individuals and companies for violating consumer protection and competition laws. These cases can involve fraud, scams, identity theft, false advertising, privacy violations, anticompetitive behavior and more.

The FTC publishes references called the Green Guides, which are designed to help marketers avoid making environmental claims that mislead consumers. The guides were first issued in 1992 and were revised in 1996, 1998 and 2012. While the guides themselves are not enforceable, the commission can use them to prove that a claim is deceptive, in violation of federal law.

The guidance they provide includes:

• General principles that apply to all environmental marketing claims

• How consumers are likely to interpret claims, and how marketers can substantiate these claims

• How marketers can qualify their claims to avoid deceiving consumers

The agency monitors environmentally themed marketing for potentially deceptive claims and evaluates compliance with the FTC Act of 1914 by reference to the Green Guides. Marketing inconsistent 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 they evaluate claims for false advertising in private litigation.

Currently, the Green Guides state that marketers should qualify claims that products are recyclable when recycling facilities are not available to at least 60% of consumers or communities where a product is sold.

How is the agency addressing recyclability claims?

The FTC is reviewing the Green Guides and issued a request for public comment on the guides 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 the 60% processing threshold for recyclability claims. It also addressed potential confusion created by the “chasing arrows” recycling symbol, which often identifies the type of plastic resin used in a product, using the numbers 1 through 7.

Many critics argue that consumers may see the symbol and assume that a product is recyclable, even though municipal recycling programs are not widely available for some types of resins. Other labels use a version of the symbol for products such as single-use grocery bags that aren’t accepted in most curbside recycling programs but can be dropped off at designated stores for recycling.

The FTC has sought public comments on specific characteristics that make products recyclable. It also has asked whether unqualified recyclability claims should be made when recycling facilities are available to a “substantial majority” of consumers or communities where the item is sold – even if the item is not ultimately recycled due to market demand, budgetary constraints or other factors.

What are companies and environmental advocates saying?

Organizations representing environmental interests, recycling businesses and the waste and packaging industries have offered numerous suggestions for updating the Green Guides. For example:

• The U.S. Environmental Protection Agency urged the FTC to increase its threshold for recyclability claims beyond the current 60% rate. The EPA said that products and packaging “should not be considered recyclable without strong end markets in which they can reliably be sold for a price higher than the cost of disposal.” It also recommended requiring companies’ recyclability claims to be reviewed and certified by outside experts.

• The Consumer Brands Association, which represents the U.S. Chamber of Commerce, the Plastics Industry Association and other commercial interests, called for more research into public understanding of environmental marketing claims. To help companies avoid making deceptive advertising claims, it urged the FTC to provide more detailed explanations, with examples of acceptable marketing.

• The Association of Plastic Recyclers encouraged the FTC to increase enforcement against deceptive unqualified claims of both recyclability and recycled content. It recommended providing stronger, more prescriptive guidance; publicizing specific examples from the marketplace of deceptive representations; and sending warning letters when companies appear to be making unsubstantiated claims. It also asked the FTC to maintain its current recyclability claim threshold at 60% and to update 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 rules. They also argued that for goods that require in-store drop-off, companies should have to prove that processors can capture and recycle at least 75% of the material.

The FTC has not set a date for publishing a final version of the revised Green Guides. All eyes will be on the agency to see how far it is willing to go to police recycling claims by manufacturers in this $90 billion U.S. industry.

Patrick Parenteau does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.