CA AG Gets Aggro Over False Claims of Bottle Biodegradability

Posted by | November 01, 2011 | Disputes, General, Going Green | 2 Comments

The good folks at the Huffington Post last week reported that California Attorney General (AG), Kamala Harris, filed a lawsuit on October 26, 2011 against ENSO Plastics, Balance Water and Aquamantra for making the alleged greenwashing claims that their bottles are “100 percent biodegradable and recyclable.  “Such claims violate California law, specifically California AB 1972, which prohibits the sale of plastic bags, and plastic food and beverage containers that are labeled as “biodegradable,” “degradable,” “decomposable.”  AB 1972 was signed into law on September 27, 2008 by then-California Governor Arnold Schwarzenegger and became effective on January 1, 2009.  Recently, California Governor Jerry Brown signed California Senate Bill 567 into law, which expands AB 1972 to banning the terms “biodegradable,” “degradable,” “decomposable” from use on all plastic products sold in California starting in 2013 (manufacturers take note!).  Additionally, CA Business and Professions Code Section 17580.5 makes it unlawful to violate the FTC Green Guides, about which I wrote here, here, here, here, here, here, and here (yeah, I’m kinda passionate about responsible business and responsible marketing; can you tell?).

According to the press release issued by AG Harris’ office, the lawsuit is a “first-of-its kind ‘greenwashing’ lawsuit against three companies that allegedly made false and misleading claims by marketing plastic water bottles as ‘100% biodegradable and recyclable.'”  According to an Associated Press article, defendants Balance Water and Aquamantra said, “They were disappointed their companies were targeted when they’ve worked hard to do something good for the environment.”  The thing is it really doesn’t matter how good you’re trying to be, you must make sure that your advertising claims meet state and federal laws and guidelines.  In this case, these manufacturers had an obligation to know California law since they were selling products there, especially Aquamantra, since it is a California corporation with its principal place of business in Dana Point, CA.

The AG’s complaint asserts that the defendants’ 100% biodegradability claims are “false, deceptive and misleading to consumers because the plastic bottles will not biodegrade as claimed, either in a landfill or any other environment.”  The complaint also states that, “The claim of recyclability on these bottles is deceptive and misleading to consumers,” because, “the bottles are made by adding a specially formulated microbial additive to standard PET plastic and items containing degradable additives are considered contaminants by postconsumer plastic recyclers and, where possible, such items are culled out from recyclable plastics.”

At a minimum, you best be sure your claims of environmental benefit meet the appropriate generally accepted standards.  For biodegradable plastics, the ASTM Standard Specification for Biodegradable Plastics (ASTM D6866-11) is one option.  However, even compliance with a reporting standard will not relieve you from knowledge of the law.  If you’re going to tout an environmental benefit, you must first review and comply with the FTC Green Guides and any relevant state laws.

Ignorance of law is no excuse!  Don’t be afraid to retain counsel to help with this process; a few days’ worth of legal work upfront is a lot less time and money than needed to defend a lawsuit and/or re-brand.  Avoiding negative PR is an added bonus that easily can be achieved through proper due diligence.

 

 

About Lara

Lara Pearson is a trademark attorney with Exemplar, where she also serves as the firm's Sustainability Steward. Lara's legal practice focuses on trademark and copyright law, including: intellectual property audits; trademark search & clearance; trademark and copyright registration & maintenance; intellectual property transfers; transactional work; and dispute resolution, including litigation when necessary. Lara primarily represents other social enterprises -- those leveraging their businesses and brands as catalysts for positive social and environmental change. Such businesses engage in CSR (Corporate Social Responsibility) to have a positive "triple bottom line" of people, planet and profit. As Exemplar's Sustainability Steward, Lara works with others in her law firm to measure and reduce the firm's carbon emissions and encourage engagement in social responsibility initiatives, including pro bono legal work and volunteering. Lara is a proud member of the Social Venture Network. Brand Geek is a member of 1% for the Planet and a Certified B Corporation, whose Incline Village office is certified under the regional Keep the Sierra Green program. Exemplar Companies is the most innovative professional services firm in the New Economy. Our unique, diversified expertise spans the disciplines of corporate law, business advisory, and capital/investment banking to better meet the needs of our high-potential customers. We have assembled a comprehensive suite of service to meet the complex issues facing companies in today’s challenging business environment. Our unique, holistic approach ensures the growth and success – and greatly increases the competitive advantage - of our customers. The Exemplar team is comprised of knowledgeable, highly skilled experts in a wide range of industries and disciplines. They work closely with our customers to provide trusted advice, incomparable support, expert guidance and the ultimate competitive advantage as they accelerate their businesses and position themselves to transform industries.

2 Comments

  • Sara Olsen says:

    This is fascinating. In Europe and other social democracies we’re seeing the impetus for more serious verification of environmental and social benefit claims coming from governments, which are contending with how to cut back while not cutting impact. In the US, where traditionally the government in comparison hasn’t been as big on taking the public or environmental benefits of business into account with its policies, maybe the impetus will come instead from litigation!

    Sara

    • Lara says:

      Thanks for making the time to read and respond to my blog post, Sara. I think you are correct — the U.S. Government is not likely to take steps to regulate claims of environmental and/or social benefit beyond the FTC Green Guides and the false advertising remedies under the Lanham (Trademark) Act, thus consumers must demand accountability through litigation, and of course, the court of public opinion!

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