The fundamental reason is a lack of uniformity in laws, regulations, and guidance. The Federal Trade Commission (FTC) provides guidance through its widely known Green Guides, but these are not legally binding. At the same time, individual states have enacted their own laws, often with stricter—or even conflicting—requirements. Aside from the significant challenge for brands, AMERIPEN is concerned that this could lead to consumer confusion and mistrust and possibly impede efforts to improve packaging recovery and recycling management. 

This regulatory patchwork makes it challenging for brands to create consistent nationwide marketing and labeling strategies. A claim that's permissible in one state might violate laws and regulations in another, forcing companies to either create state-specific packaging or adhere to the strictest standards in force – potentially limiting interstate commerce. Because of this, AMERIPEN is hosting a series of webinars designed to help stakeholders better understand packaging claims and labeling requirements and consider strategies for compliance.

We will be discussing a number of critical topics, but I want to emphasize several key points for brands and stakeholders to consider:

1. Inconsistencies and definition problems. A prime example of discrepancies between federal guides and state law is California's Senate Bill 343 (SB 343) enacted in 2021 and that may go into full effect as soon as next year. This law sets more stringent standards for recyclability claims than the Green Guides, which other states have used to lead their own lawmaking. For instance, while the FTC considers the use of resin identification codes (RIC) inside the chasing arrows symbol on plastic products to be neutral, SB 343 may ban any use of symbols that could be mistaken for recycling claims. The law also conflicts with laws in 36 other states, where omitting the RIC with chasing arrows could lead to state or private enforcement actions.

Inconsistencies also exist between the Green Guides and state laws regarding what qualifies as "compostable," "recyclable," and "recycled content." Among these terms, "compostable" stands out as particularly problematic. The Green Guides consider an unqualified "compostable" claim to mean the product can be composted at home by the consumer. However, some states interpret it as industrially compostable by default. Consequently, a product labeled simply as "compostable" could meet legal requirements in one state while potentially misleading consumers in another. Compostable claims have been exacerbated even further recently with several states enacting laws conflicting with each other and federal guidance. 

2. Increasing litigation. As I previously mentioned, the complexity of the regulatory landscape has led to a surge in litigation. The impetus for these lawsuits widely varies: Consumer class actions, competitor challenges, and investigations by state attorneys general are all on the rise. Even advocacy statements made by brands are coming under scrutiny, with some investigations treating past corporate communications as potentially actionable advertising claims.

3. Qualification matters. Brands are being advised to substantiate their environmental claims with competent and reliable scientific evidence. Qualifiers are often necessary to prevent deception, especially for claims like "recyclable" where availability of recycling facilities may vary. 

Third-party certifications, particularly in areas like compostability, are becoming more common. In the European Union, a new directive is imposing third-party verification on all environmental claims. These third parties must be deemed competent by European authorities and conduct their verifications according to EU-level standards. In the United States, the FTC is alluding to similar high standards of proof that could become a substantiation standard in the United States in the future.

4. Internal management. Brands can't eliminate risk entirely, but they can take steps to become more risk tolerant. Doing so requires a commitment to due diligence and ongoing adaptation to changing regulatory requirements. Lawyers are advising brands to be precise in their language and transparent about any limitations or qualifications to their environmental claims.

Given the changing legal landscape in the United States, now is the time for companies to ensure they have robust internal processes for evaluating and managing environmental claims, which could involve legal, research and development, and other relevant teams early in the process. Companies also may consider investing in training programs to ensure that staff understand the complexities and risks involved, including for social media statements. 

As environmental concerns continue to grow in importance to consumers, the regulatory landscape is likely to evolve even further. AMERIPEN and other stakeholders are calling on the federal government for clear definitions and standardized national regulations to provide clarity and consistency for packaging compostable, recyclable, and reusable claims. In the meantime, brands must remain vigilant, staying abreast of changing regulations and adjusting their practices accordingly.

To learn more about our webinar series, visit www.ameripen.org/packagingclaims, or contact AMERIPEN to find out how you can engage in the advocacy process.