The second webinar in a three-part series on packaging labeling requirements—“Legislative Pathways: State or Federal?”—will begin at 1 p.m. EST on October 29, 2024, and is sponsored by AMERIPEN—the American Institute for Packaging and the Environment.
“Did you know there is not a standard federal definition for recycling, recyclable or compostable in the U.S.?” says the description of the webinar from AMERIPEN, which represents the entire packaging supply chain.
“Despite the [Federal Trade Commission] Green Guides helping to provide a common interpretation, states can set their own definitions. As a result, what is deemed recyclable in one state may not be in another.”
The webinar will explore federal legislative proposals that would help establish standardized definitions, which would provide clarity and harmonization “on packaging pathways for end of life,” according to AMERIPEN.
The presenter will be attorney Joe Dages, an associate at Steptoe LLP, a Washington, D.C.-based lobbying law firm. Dages works with clients in the chemical, food, dietary supplement, cosmetic, and drug industries, according to his profile on the firm’s website.
Dages helps companies regulated by federal agencies such as the U.S. Food and Drug Administration and Federal Trade Commission (FTC) to bring new products to market, and he “defends those companies when their products are scrutinized,” according to the Steptoe & Johnson website.
Environmental Claims and Labels
The first part of the three-part series was held in September. It was titled “Moving Target: The Fluctuation of Environmental Claims and Labeling Guidance,” and the presenter was Sheila A. Millar, a partner at Keller and Heckman law firm’s office based in Washington, D.C.
In the one-hour presentation, Millar reviewed the landscape for labeling requirements and how states are starting to review standards for the chasing arrow symbols used to designate recyclable products. Greenwashing—or claims that exaggerate recyclability—has become a major concern of regulators.
One point she made early in her presentation is that all claims must be truthful and not misleading and that a reasonable person or consumer would understand. Claims also must be qualified to prevent deception.
Substantiation rules require that there be a reasonable basis for claims regarding a product at the time the claims were made. For green claims, competent and reliable scientific evidence must back up the claims. Some environmental issues are surrounded by a lot of uncertainty, so claims should be clear and qualified, as needed, she says. And if the facts change, the claim should be modified, Millar says.
Green Guides
She also touched on the FTC “Green Guides” that were first issued in 1992 and updated over the years. They are currently under review, but drafts of updated guidelines could be released by the end of this year, following a two-year public comment period. The Green Guides are not regulations but illustrate how the agency interprets claims as they relate to compostable, recyclable, recycled content, refillable, renewable, and other claims. Under the FTC’s process, updated guidelines are generally available for further public comments.
State Laws Apply
The FTC guidelines do not preempt state law, she points out.
“That means we have a number of state laws to worry about,” Millar says. “Some states do have specific requirements and restrictions on specific claims.”
“We are seeing fluctuating and inconsistent standards,” she adds. “And that certainly is complicating the landscape not only for businesses but for consumers, as well.”
Examples for packaging producers and brands are the definitions of compostable and recyclable. FTC has its definitions, while some state laws add restrictions for compostable claims and define recyclable in their own ways.
FTC also addressed resin identification codes. But some states require the “triangle of arrows” designs, while California will restrict the use of chasing arrow symbols.
Another example of inconsistency involves advanced recycling. Some states accept that advanced recycling is recycling, while other states consider it to be energy recovery, not recycling.
With conflicting legislation and evolving rules, companies have been increasingly reluctant to talk about their green advances because of fear of litigation. Challenges can come from competitors, regulators, plaintiff’s attorneys, or investors, she says.
Here are some of her key takeaways that she gave during her presentation:
- Almost every business makes green claims,
- Laws are changing and inconsistent,
- Litigation and enforcement risks are increasing,
- Strong processes help manage risks, and
- Complete risk elimination is not possible and good processes can help businesses reduce and manage risks.
On-Pack Claims and Labels
The third and last segment in the series will be held on November 12, 2024. It is titled “Recommendations for Applying On-Pack Claims and Labels in 2025 and Beyond.” The presenters will be Alex Truelove of BPI, Paul Nowak of How2Recycle®, and Rishi Banerjee of Smart Label.
“With all the legislative proposals examining packaging claims and labels, what does this mean for popular labeling programs like How2Recycle® and Smart Label?” says the AMERIPEN description of that seminar. The presenters are expected to discuss pending legislation and how it might interact with company labeling programs.
For more information on the series titled Understanding Packaging Claims and Labeling Requirements, visit here.
Thomas A. Barstow is senior editor of FlexPack VOICE®.