Can we trust companies that claim their plastic products are recyclable?

Patrick Parenteau, Vermont School of Law and Graduate Studies

Plastic is a growing segment of municipal solid waste in the United States, and most of it ends up in the environment. Only 9% of plastic collected in municipal solid waste was recycled in 2018, the most recent year for which national data are available. The rest was burned in waste-to-energy plants or buried in landfills.

Manufacturers say better recycling is the best way to reduce plastic pollution. But critics say the industry often overstates how easy it is to actually recycle items. In September 2024, beverage company Keurig Dr Pepper was fined $1.5 million for falsely claiming its K-Cup coffee pods were recyclable after two major recycling companies said they couldn’t process the cups. California is suing ExxonMobil, accusing the company of falsely representing plastic products as recyclable.

Environmental law expert Patrick Parenteau explains why recyclability claims have confused consumers and how upcoming guidance from the U.S. Federal Trade Commission could address the issue.

Why do manufacturers need guidance on what ‘recyclable’ means?

Declaring a product recyclable means that it can be collected, separated or otherwise recovered from the waste stream for reuse or for the manufacture of other products. But it’s difficult to define exactly what this means for several reasons:

• Different states in the US have different recycling regulations and guidelines, which can affect what is considered recyclable in a given location.

• The availability and quality of recycling infrastructure also varies from place to place. Even if a product is technically recyclable, a local recycling facility may not be able to accept it because its equipment cannot process it.

• If there is no market demand for the recycled material, recycling companies are unlikely to accept it.

What is the role of the Federal Trade Commission?

Public concern about plastic pollution has exploded in recent years. A 2020 survey found that globally, 91% of consumers were concerned about plastic waste.

Once plastic enters the environment, it can take 1,000 years or more to decompose, depending on environmental conditions. Exposure through ingestion, inhalation, or drinking water poses potential risks to human health and wildlife.

The Federal Trade Commission (FTC) is dedicated to protecting the public from deceptive or unfair business practices and unfair methods of competition. Each year, it files hundreds of lawsuits against individuals and businesses for violations of consumer protection and competition laws. These cases may involve fraud, scams, identity theft, false advertising, privacy violations, anticompetitive behavior, and more.

The FTC publishes Green Guides, which are designed to help marketers avoid making environmental claims that mislead consumers. The guides were first published in 1992 and were revised in 1996, 1998, and 2012. Although the guides themselves are not enforceable, the commission can use them to prove that a claim is misleading, in violation of federal law.

The advice they provide includes:

• General principles applicable to all environmental marketing claims

• How consumers are likely to interpret claims and how marketers can support these claims

• How can marketers qualify their claims to avoid misleading consumers?

The agency monitors environmental marketing campaigns for potentially misleading claims and assesses compliance with the FTC Act of 1914 by reference to the Green Guides. Marketing campaigns that do not comply with the Green Guides may be considered unfair or deceptive under Section 5 of the FTC Act.

Courts also refer to the Green Guides when assessing false advertising claims in private litigation.

Currently, the Green Guides require marketers to qualify claims that products are recyclable when recycling facilities are not available to at least 60% of consumers or communities where a product is sold.

How does the agency handle recyclability claims?

The FTC is currently reviewing the Green Guides and issued a request for public comment on the guides in late 2022. In May 2023, the agency hosted a workshop titled Talking Trash at the FTC: Recycling Claims and the Green Guides.

The meeting focused on the 60% conversion threshold for recyclability claims. It also addressed the potential confusion created by the “tracking arrows” recycling symbol, which often identifies the type of plastic resin used in a product, using numbers 1 through 7.

Many critics argue that consumers may see the symbol and assume a product is recyclable, even though municipal recycling programs are not widely available for certain types of resins. Other labels use a version of the symbol for products such as single-use grocery bags that are not accepted in most curbside recycling programs but can be dropped off at designated stores for recycling.

The FTC sought public comment on the specific characteristics that make products recyclable. It also asked whether unqualified claims of recyclability should be made when recycling facilities are available to a “substantial majority” of consumers or communities where the item is sold — even if the item is not ultimately recycled due to market demand, budget constraints or other factors.

What do businesses and environmentalists say?

Organizations representing environmental interests, recycling companies, and the waste and packaging industries have offered many suggestions for updating the Green Guides. For example:

• The U.S. Environmental Protection Agency has urged the FTC to raise the recyclability threshold beyond the current 60 percent. The EPA said products and packaging “should not be considered recyclable without a strong end market in which they can be reliably sold at a price above the cost of disposal.” It also recommended requiring companies’ recyclability claims to be reviewed and certified by outside experts.

• The Consumer Brands Association, which represents the U.S. Chamber of Commerce, the Plastics Industry Association and other business interest groups, called for more study of the public’s understanding of environmental marketing claims. To help companies avoid making misleading advertising claims, it urged the FTC to provide more detailed explanations, along with examples of acceptable marketing.

• The Association of Plastic Recyclers urged the FTC to step up enforcement of misleading and unqualified claims about recyclability and recycled content. It recommended providing stronger and more prescriptive guidelines, publishing specific examples of misleading claims in the marketplace, and sending warning letters to companies that appear to be making unsubstantiated claims. It also called on the FTC to maintain its current threshold for recyclability claims at 60 percent and to update the Green Guides every five years instead of ten.

• A coalition of environmental groups, including Greenpeace USA and the Center for Biological Diversity, urged the Commission to codify the green guides into binding rules. They also argued that for products that require a store deposit, companies should be required to prove that processors can recover and recycle at least 75% of the materials.

The FTC has not yet set a date for publishing the final version of the revised Green Guides. All eyes will be on the agency to see how far it is willing to go in policing the recycling claims of manufacturers in the $90 billion U.S. industry.

Patrick Parenteau, emeritus professor of law, Vermont School of Law and Graduate Studies

This article is republished from The Conversation under a Creative Commons license. Read the original article.