Steering Clear of Legal Consequences

The road to sustainability is laden with regulatory complexities, especially when it comes to green marketing claims. In part one of this series, we examined several lawsuits stemming from marketing a product as Recyclable.  In this second part of our recyclable series, we will dive into the additional risks this marketing claim poses.

We understand the challenges that sustainability professionals, brands, and retailers face in ensuring the accuracy and compliance of their green marketing assertions. At Softly, our expertise lies in identifying potential pitfalls that can inadvertently expose your company to the risk of non-compliance and litigation.

Join us as we delve into the intricacies of green claims, providing examples of marketing claims gone wrong.  

The Risk of “Recyclable”

Your product is recyclable, and you want to share this with your customers. But did you know that marketing your product as ‘recyclable’ has proven to be a risky endeavor? Consumers prioritize purchasing recyclable products, but when it comes to marketing a product as recyclable, the landscape becomes challenging, to say the least.  Let’s look at how this term presents inherent risks to sustainable businesses.

Recently, trash bag manufacturers attempted to capitalize on the recycling trend only to find themselves in hot water.  They introduced “recycling bags” that were not only non-recyclable but also sent recyclables straight to the landfill. Several companies, including Glad, Hefty, and Walmart, have been involved in litigation regarding their recycling bags. Here are the specifics of the recent class action suit litigation against Glad Products and The Clorox Company, which is still pending.

In this legal case, Glad did not explicitly market its bags as recyclable.  So what went wrong?  

While Glad’s recycling bags are said to make recycling easier and cleaner, this complaint cites the following issues:

  1. The “Recycling Bags” were not recyclable nationwide.
  1. Only a minority of municipalities accept these bags.
  1. Misleading labeling led consumers to believe they could use the bags universally, thereby inadvertently sending their recyclables to landfills or incinerators.

Glad’s use of ambiguous terms like “recycling bags’ and green imagery, similar to the chasing arrows symbol, opened the floodgates to multiple legal challenges and reputational damage.

Glad Recycling Bags is now facing a new class action lawsuit. In Woolard et al. v. The Glad Products Co. and The Clorox Co., the same plaintiff who brought the class action suit against Hefty (which settled for $3M–see below) is using the same law firm to hold Glad accountable for its recycling bags.

To avoid these traps, it is essential to gain an overall understanding of recycling, qualify your recycling claims, and market your product based on broad policy rather than specific local policy.   

Why “Recycling Bags” are not Recyclable

Understanding why “Recycling Bags” fall short in the recycling process sheds light on the larger issue. Municipal recycling facilities (MRFs) often reject LDPE plastic bags due to their propensity to clog machinery, endanger workers, and lack of demand in international markets.

When the bags are sent to the landfill or incinerator, they actually prevent the recycling of their contents, taking all the recyclable material with them. With incineration, they can become a harmful contaminant by creating more CO2 and, when sent to the landfill, degrade into microplastics, which can carry pollutants throughout the environment.

As of 2018, China is no longer purchasing LDPE plastic from other countries. Consequently, the plastic policies of the US MRFs have significantly changed due to the lower demand and value of collected plastic materials.

These recycling bags also resulted in local governments spending additional money to educate consumers not to bag their recycling.

Clear Bag Programs and the 60 Percent Rule

Glad’s “Recycling Bags” are only useful in areas with blue and clear bag recycling laws. Although once prominent, few programs accept recyclables in clear or blue plastic bags anymore. The programs that still exist usually offer free bags to consumers. Labeling these products as “recycling bags” is considered to be deceptive under the FTC Green Guides, which state:

“When recycling facilities are available to a substantial majority of consumers or communities where the item is sold, marketers can make unqualified recyclable claims. The term ‘‘substantial majority,’’ as used in this context, means at least 60 percent.”

FTC Green Guides: 16 C.F.R. § 260. 12 (b)(1)

The best rule of thumb for promoting recycling of your product is the FTC’s 60% rule: a product is not recyclable unless 60% of consumers or facilities can recycle it.

How You Communicate Matters

The Glad label used the phrases “Designed for Municipal Use” and “Please Check your Local Facilities.” The Complaint states that this also goes against the FTC Green Guides.

The FTC lays out how to communicate to consumers when recycling facilities are limited. The Green Guides illustrate how companies can replace these vague messages by indicating the percentage of consumers or communities that can utilize recycling facilities for a particular item.  Or they can use claims/phrases suggested by the Green Guides such as:

  • ‘‘This product [package] may not be recyclable in your area”
  • ‘‘Recycling facilities for this product [package] may not exist in your area’’
  • ‘‘This product [package] is recyclable only in the few communities that have appropriate recycling facilities’’

Understand the Landscape Before Making the Claim

When making any environmental product claim, especially recyclable, it’s important to ask important questions such as:

  • How will consumers view this claim?  
  • Could the claim be considered misleading?
  • Are there federal, state or local laws that guide or govern the claim?  
  • Will the action steps regarding the claim be easily accessible to consumers, ie: do recycling centers take the product?

By putting yourself in the shoes of the consumer, you can build customer trust, increase sales, and safeguard your reputation while avoiding green marketing pitfalls.

It’s also imperative to understand green claim advertising regulations, which vary by geography.  Softly Solutions is an easy-to-implement solution that can monitor your websites and retail sites, alerting you of potential issues or non-compliance.

Recycling Bag Woes are Not a One-Off

Not only are Glad’s Recycling Bags receiving a lot of attention in the courthouse, Walmart and Reynolds are also facing similar lawsuits.  

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Hefty Recycling Bags

Gudgel and Woolard et al. v. Reynolds Consumer Products Inc. et al.

  • As part of this Hefty recycling bags settlement, Reynolds did not acknowledge any fault.
  • However, they agreed to pay up to $3 million within six months.
  • Additionally, the company has committed to either making the bags recyclable or removing the claim from the product’s packaging within the same period.
  • Hefty’s parent company, Reynolds, settled this case in 2023.

Great Value Drawstring Recycling Bags

Millam et al. v. Walmart Inc.

  • This case was voluntarily dismissed – you can read more here.

Glad Recycling Bags

Peterson v. The Glad Products Company and The Clorox Company

  • This is another case against Glad that is still pending.

Navigate regulations with confidence! See how Softly’s green claims analysis and monitoring service can save you hours of research


References:

  1. Keirsted et al. v. The Glad Products Co. and The Clorox Co.
  2. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9602440/
  3. Guides for the Use of Environmental Marketing Claims; Final Rule

Information provided is for general purposes only and not legal advice; consult a qualified attorney for personalized guidance. We disclaim any liability for actions based on this information.

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