Consumer and market demands for sustainability have played a part in bringing packaging into the food safety system. For example, increased pressure to use recycled material in food packaging has led to unintended consequences like those revealed by 2011 Swiss research regarding the unsafe migration of mineral oil from recycled paper and cardboard into foodstuffs.
While the food safety community strives to bring packaging under hazard analysis and critical control points (HAACP) safety models, both packaging and food producers must now also consider the impact of the “Green Guides” issued by the Federal Trade Commission (FTC).
The FTC’s guidance regarding package and product environmental claims can affect both food safety concerns and potential consumer action for false labeling. Because the purchases of eco-friendly consumers continue to be influenced by environmental packaging efforts, companies need to understand what’s at stake in deciding to adopt—or ignore—the guidance provided.
The Green Guides
The FTC issued the Green Guides to provide guidance for marketers seeking to make claims about the environmental effects of products or product packaging. The goal is to guide companies away from making claims that are considered deceptive under Section 5 of the Federal Trade Commission Act.
The guides address a wide array of claims, such as degradable, compostable, recyclable, ‘free-of’ and nontoxic. Absent, however, is any guidance on marketing products as organic, sustainable and natural—terms that have been the subject of much false labeling litigation. In the FTC’s view, it lacked a sufficient basis to provide meaningful guidance and wanted to avoid proposing guidance that duplicates or contradicts rules of other agencies.
According to the FTC, the Guides are not enforceable regulations and do not have the force and effect of law. Rather, they provide the basis for voluntary compliance and assist in guiding the public in conducting business in conformance with the law. The FTC warns that an environmental marketing claim should not be presented in a manner that overstates the environmental attribute or benefit, expressly or by implication.
Under the Green Guides, marketers should avoid implications of significant environmental benefits if the benefit is in fact negligible. Factors such as clarity of language, relative type/size, and proximity to the claim being qualified, in addition to an absence of contrary claims that could undercut effectiveness, will maximize the likelihood that qualifications and disclosures are appropriately clear and prominent.
Moreover, marketers should present environmental claims in a way that makes clear whether the environmental attribute or benefit being asserted refers to the product, the product’s packaging, a service, or to a portion or component of the product, package, or service.
In general, if the environmental attribute or benefit applies to all but minor, incidental components of a product or package, the FTC says the claim need not be qualified to identify that fact.
The Green Guides and Food Safety CLAIMS
Inevitably, marketers and packaging producers will have to work together to determine how to satisfy requirements.
Consumer and market demands for sustainability have played a part in bringing packaging into the food safety system. For example, increased pressure to use recycled material in food packaging has led to unintended consequences like those revealed by 2011 Swiss research regarding the unsafe migration of mineral oil from recycled paper and cardboard into foodstuffs.
While the food safety community strives to bring packaging under hazard analysis and critical control points (HAACP) safety models, both packaging and food producers must now also consider the impact of the “Green Guides” issued by the Federal Trade Commission (FTC).
The FTC’s guidance regarding package and product environmental claims can affect both food safety concerns and potential consumer action for false labeling. Because the purchases of eco-friendly consumers continue to be influenced by environmental packaging efforts, companies need to understand what’s at stake in deciding to adopt—or ignore—the guidance provided.
The Green Guides
The FTC issued the Green Guides to provide guidance for marketers seeking to make claims about the environmental effects of products or product packaging. The goal is to guide companies away from making claims that are considered deceptive under Section 5 of the Federal Trade Commission Act.
The guides address a wide array of claims, such as degradable, compostable, recyclable, ‘free-of’ and nontoxic. Absent, however, is any guidance on marketing products as organic, sustainable and natural—terms that have been the subject of much false labeling litigation. In the FTC’s view, it lacked a sufficient basis to provide meaningful guidance and wanted to avoid proposing guidance that duplicates or contradicts rules of other agencies.
According to the FTC, the Guides are not enforceable regulations and do not have the force and effect of law. Rather, they provide the basis for voluntary compliance and assist in guiding the public in conducting business in conformance with the law. The FTC warns that an environmental marketing claim should not be presented in a manner that overstates the environmental attribute or benefit, expressly or by implication.
Under the Green Guides, marketers should avoid implications of significant environmental benefits if the benefit is in fact negligible. Factors such as clarity of language, relative type/size, and proximity to the claim being qualified, in addition to an absence of contrary claims that could undercut effectiveness, will maximize the likelihood that qualifications and disclosures are appropriately clear and prominent.
Moreover, marketers should present environmental claims in a way that makes clear whether the environmental attribute or benefit being asserted refers to the product, the product’s packaging, a service, or to a portion or component of the product, package, or service.
In general, if the environmental attribute or benefit applies to all but minor, incidental components of a product or package, the FTC says the claim need not be qualified to identify that fact.
The Green Guides and Food Safety CLAIMS
Inevitably, marketers and packaging producers will have to work together to determine how to satisfy requirements.
Under the Guides, any business making an express or implied claim that presents an objective assertion about the environmental attribute of a product, package, or service must possess and rely upon a reasonable basis for substantiating the claim at the time the claim is made.
In the context of environmental marketing claims, “substantiation” requires competent and reliable scientific evidence defined as tests, analysis, research, studies, or other evidence based on the expertise of professionals in the relevant area, conducted and evaluated in an objective manner by persons qualified to do so, using procedures generally accepted in the profession to yield accurate and reliable results.
Information obtained while fulfilling substantiation requirements will move the dial forward on the packaging industry’s efforts to increase food safety.
Understanding the environmental impact tied to specific claims will also, necessarily, reveal packaging attributes that may have unintended food safety consequences—like the unexpected mineral oil contamination of packaging made from recycled newspaper printed with mineral oil-based inks.
The Green Guides and Class Action Lawsuits
Manufacturers have seen an explosion of consumer class actions based on labeling or packaging claims and, as a result, cannot help but wonder what impact the Green Guide will have on this kind of litigation.
While not providing a guarantee, recent litigation suggests that complying with the Guides can give food and packaging manufacturers a significant weapon for avoiding, managing, and winning consumer litigation based on claims of deceptive environmental package labeling.
For example, a false labeling case against Coca-Cola over the name and label of its “Pom Wonderful” pomegranate juice ultimately failed because the company had complied with U.S. Food and Drug Administration (FDA) regulations regarding flavored juice blends.
The plaintiffs in the case claimed the name and labeling of the product created a false impression to consumers that the product is mostly pomegranate and blueberry juice but that, in reality, the product is a blend of juices that only contains small amounts of the named juices.
The Ninth Circuit Court of Appeals, however, found that Coca-Cola could not be sued because it had followed FDA guidelines. Further, the Ninth Circuit said courts “must generally prevent parties from undermining, through private litigation, the FDA’s considered judgments,” and noted the courts lacked the FDA’s expertise in “guarding against deception in the context of juice beverage labeling.”
Though the Green Guides do not share the mandatory nature of FDA regulations, the same reasoning regarding the role of compliance may find favor in defending against environmental claims on food packaging. By the same token, companies that do not heed the advice of the Guides could find this federal guidance used against them.
Plaintiffs with false labeling claims are likely to point to a company’s lack of compliance as a flagrant disregard of industry standards and as evidence the company’s labeling should be considered false, deceptive, or misleading.
Conclusions
Food safety is always the paramount concern for everyone in the food production chain and—as is usually the case—compliance with regulations and standards increases assurances that what reaches consumers meets those goals.
When it comes to the FTC’s Green Guides, following the guidance set forth by the FTC not only helps with food safety concerns, it also likely provides a significant weapon in the defeat of any class action premised on the notion that environmental packaging or label claims somehow deceived or misled consumers.
Reprinted from Food Safety magazine.
© 2014 Target Group, www.foodsafetymagazine.com.
