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122 3268

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

COMMISSIONERS: Edith Ramirez, Chairwoman 

Julie Brill 

Maureen K. Ohlhausen 

Joshua D. Wright 

In the Matter of 

Down to Earth Designs, Inc., 

a corporation 

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Docket No. C-4443 

DECISION AND ORDER

 The Federal Trade Commission, having initiated an investigation of certain acts and 

practices of the respondent named in the caption hereof, and the respondent having been 

furnished thereafter with a copy of a draft of a Complaint which the Bureau of Consumer 

Protection proposed to present to the Commission for its consideration and which, if issued, 

would charge the respondent with violations of the Federal Trade Commission Act; and 

The respondent, its attorney, and counsel for the Commission having thereafter executed 

an Agreement Containing Consent Order (“Consent Agreement”), which includes: a statement 

by respondents that they neither admit nor deny any of the allegations in the draft complaint, 

except as specifically stated in the Consent Agreement, and, only for purposes of this action, 

admit the facts necessary to establish jurisdiction; and waivers and other provisions as required 

by the Commission’s Rules; and 

The Commission having thereafter considered the matter and having determined that it 

had reason to believe that the respondent has violated the Federal Trade Commission Act, and 

that a complaint should issue stating its charges in that respect, and having thereupon accepted 

the executed consent agreement and placed such agreement on the public record for a period of 

thirty (30) days for the receipt and consideration of public comments, now in further conformity 

with the procedure prescribed in Commission Rule 2.34, 16 C.F.R. § 2.34, the Commission 

hereby issues its complaint, makes the following jurisdictional findings, and enters the following 

order: 

 

1. Respondent is an Oregon Corporation with its principal office or place of business at 

2808 NE Martin Luther King Jr. Boulevard, Portland, Oregon, 97212. 

2. The Federal Trade Commission has jurisdiction of the subject matter of this proceeding 

and of the respondent, and the proceeding is in the public interest. 
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ORDER 

DEFINITIONS 

For purposes of this order, the following definitions shall apply: 

1. “Clearly and prominently” means as follows: 

A. In print communications, the disclosure shall be presented in a manner that stands 

out from the accompanying text, so that it is sufficiently prominent, because of its 

type size, contrast, location, or other characteristics, for an ordinary consumer to 

notice, read, and comprehend it; 

B. In communications made through an electronic medium (such as television, video, 

radio, and interactive media such as the Internet, online services, and software), 

the disclosure shall be presented simultaneously in both the audio and visual 

portions of the communication. In any communication presented solely through 

visual or audio means, the disclosure shall be made through the same means 

through which the communication is presented. In any communication 

disseminated by means of an interactive electronic medium such as software, the 

Internet, or online services, the disclosure must be unavoidable. Any audio 

disclosure shall be delivered in a volume and cadence sufficient for an ordinary 

consumer to hear and comprehend it. Any visual disclosure shall be presented in 

a manner that stands out in the context in which it is presented, so that it is 

sufficiently prominent, due to its size and shade, contrast to the background 

against which it appears, the length of time it appears on the screen, and its 

location, for an ordinary consumer to notice, read, and comprehend it; and 

C. Regardless of the medium used to disseminate it, the disclosure shall be in 

understandable language and syntax. Nothing contrary to, inconsistent with, or in 

mitigation of the disclosure shall be used in any communication. 

2. “Close proximity” means on the same print page, web page, online service page, or other 

electronic page, and proximate to the triggering representation, and not accessed or 

displayed through hyperlinks, pop-ups, interstitials, or other means. 

3. “Commerce” means as defined in Section 4 of the Federal Trade Commission Act, 15 

U.S.C. § 44. 

4. “Competent and reliable scientific evidence” means tests, analyses, research, or studies 

that have been conducted and evaluated in an objective manner by qualified persons, that 

are generally accepted in the profession to yield accurate and reliable results, and that are 

sufficient in quality and quantity based on standards generally accepted in the relevant 

scientific fields, when considered in light of the entire body of relevant and reliable 

scientific evidence, to substantiate that a representation is true. Specifically: 
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A. For unqualified biodegradability claims, any scientific technical protocol (or 

combination of protocols) substantiating such claims must assure complete 

decomposition within one year and replicate, i.e., simulate, the physical 

conditions found in landfills, where most trash is disposed. 

B. For qualified biodegradability claims, any scientific technical protocol (or 

combination of protocols) substantiating such claims must both: 

i. assure the entire product will (1) completely decompose into elements 

found in nature in the stated timeframe or, if not qualified by time, within 

one year; or (2) decompose into elements found in nature at the rate and to 

the extent stated in the representation; and 

ii. replicate, i.e., simulate, the physical conditions found in the type of 

disposal facility or method stated in the representation or, if not qualified 

by disposal facility or method, the conditions found in landfills, where 

most trash is disposed. 

5. “Customary disposal” means any disposal method whereby respondent’s products 

ultimately will be disposed of in a landfill, in an incinerator, or in a recycling facility. 

6. “Degradable” includes biodegradable, oxo-biodegradable, oxo-degradable, or 

photodegradable, or any variation thereof. 

7. “Landfill” means a municipal solid waste landfill that receives household waste. 

“Landfill” does not include landfills that are operated as bioreactors or those that are 

actively managed to enhance decomposition. 

8. Unless otherwise specified, “respondent” means Down to Earth Designs, Inc., a 

corporation, and its successors and assigns. 

I. 

IT IS ORDERED that respondent, and its officers, agents, representatives, and 

employees, directly or through any corporation, partnership, subsidiary, division, or other device, 

in connection with the manufacturing, labeling, advertising, promotion, offering for sale, sale, or 

distribution of any product, package, or service, in or affecting commerce, shall not represent, in 

any manner, directly or indirectly, expressly or by implication: 

A. That any product or package is degradable, unless 

i. the entire item will completely decompose into elements found in nature 

within one year after customary disposal; or 
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ii. the representation is clearly and prominently and in close proximity 

qualified by: 

a. Either (1) the time to complete decomposition into elements found 

in nature; or (2) the rate and extent of decomposition into elements 

found in nature, provided that such qualification must disclose that 

the stated rate and extent of decomposition does not mean that the 

product or package will continue to decompose; and 

b. If the product will not decompose in a customary disposal facility 

or by a customary method of disposal, both (1) the type of noncustomary disposal facility or method and (2) the availability of 

such disposal facility or method to consumers where the product or 

package is marketed or sold 

and such representation is true, not misleading, and, at the time it is made, 

respondent possesses and relies upon competent and reliable scientific evidence 

that substantiates the representation. 

B. That any product or package is compostable, unless all materials in the item will 

break down into, or otherwise become part of, usable compost (e.g., soilconditioning material, mulch) in a safe and timely manner (i.e., in the same time 

as the materials with which it is composted): 

i. in a home composting pile or device; 

ii. in a municipal or institutional composting facility that is available to a 

substantial majority of consumers or communities where the item is sold, 

and respondent discloses clearly and prominently and in close proximity to 

the representation that the item is only compostable in such a facility; or 

iii. in a municipal or institutional composting facility that is not available to a 

substantial majority of consumers or communities, and respondent 

discloses clearly and prominently and in close proximity to the 

representation: (a) that the item is only compostable in such a facility and 

(b) the limited availability of municipal or institutional composting 

facilities that compost the item, such as by disclosing the percentage of 

consumers or communities that have access to such facilities, 

and such representation is true, not misleading, and, at the time it is made, 

respondent possesses and relies upon competent and reliable scientific evidence 

that substantiates the representation. 

C. That any product respondent markets in whole or in part as capable of handling 

human waste, including, but not limited to, any disposable diaper product or 

disposable wipe, is compostable, unless respondent discloses clearly and 
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prominently and in close proximity to the representation that the product cannot 

be composted if soiled with anything other than urine. 

D. That any product or package is free of, or does not contain or use, a substance, 

unless the representation is true, not misleading, and, at the time it is made 

respondent possesses and relies upon competent and reliable scientific evidence 

that substantiates the representation; and 

i. the product or package does not contain or use substances that pose the 

same or similar environmental risks as the substance that is not present; 

and 

ii. the substance has been associated with the product category.

Provided, however, that this order shall not enjoin respondent from representing 

that any product or package is free of, or does not contain or use, a substance 

where: 1) the level of the specified substance is no more than that which would 

be found as an acknowledged trace contaminant or background level; 2) the 

substance’s presence does not cause material harm that consumers typically 

associate with that substance; and 3) the substance has not been added 

intentionally to the product. 

E. That any product, package, or service offers a general environmental benefit, 

unless respondent discloses, clearly and prominently and in close proximity to the 

representation, a specific environmental benefit or benefits, and, taking into 

account any such disclosure, all reasonable interpretations of the representation 

are true, not misleading, and at the time it is made, respondent possesses and 

relies upon competent and reliable evidence, which when appropriate must be 

competent and reliable scientific evidence, that substantiates each reasonable 

interpretation of the representation. 

F. That any product, package, or service offers any environmental benefit, unless the 

representation is true, not misleading, and, at the time it is made, respondent 

possesses and relies upon competent and reliable evidence, which when 

appropriate must be competent and reliable scientific evidence, that substantiates 

the representation. 

II. 

IT IS FURTHER ORDERED that respondent, and its officers, agents, representatives, 

and employees, directly or through any corporation, partnership, subsidiary, division, or other 

device, in connection with the manufacturing, labeling, advertising, promotion, offering for sale, 

sale, or distribution of any product, package, or service, in or affecting commerce, is 

permanently restrained and enjoined from making or assisting others in making, expressly or by 

implication, orally or in writing, any misrepresentation regarding certifications, including: 
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A. The fact that, or degree to which, an independent third-party certifier or 

organization with appropriate expertise has evaluated a product, package, or 

service based on its environmental benefits or attributes; or 

B. That an independent third-party certifier or organization with appropriate 

expertise has evaluated the environmental benefits or attributes of any product, 

package, or service based on the application of objective standards. 

III. 

IT IS FURTHER ORDERED that respondent shall, for five (5) years after the last date 

of dissemination of any representation covered by this order, maintain and upon request make 

available to the Commission for inspection and copying: 

A. All advertisements, labeling, packaging and promotional materials containing the 

representation; 

B. All materials that were relied upon in disseminating the representation; 

C. All tests, reports, studies, surveys, demonstrations, or other evidence in its 

possession or control that contradict, qualify, or call into question the 

representation, or the basis relied upon for the representation, including 

complaints and other communications with consumers or with governmental or 

consumer protection organizations; and 

D. All acknowledgments of receipt of this order, obtained pursuant to Part IV. 

IV. 

 IT IS FURTHER ORDERED that respondent shall deliver a copy of this order to all 

current and future subsidiaries, current and future principals, officers, directors, and managers, 

and to all current and future employees, agents, and representatives having responsibilities 

relating to the subject matter of this order. Respondent shall secure from each such person a 

signed and dated statement acknowledging receipt of the order, with any electronic signatures 

complying with the requirements of the E-Sign Act, 15 U.S.C. § 7001 et seq. Respondent shall 

deliver this order to current personnel within thirty (30) days after the date of service of this 

order, and to future personnel within thirty (30) days after the person assumes such position or 

responsibilities. 

V. 

IT IS FURTHER ORDERED that respondent shall notify the Commission at least 

thirty (30) days prior to any change in the corporation that may affect compliance obligations 

arising under this order, including, but not limited to, a dissolution, assignment, sale, merger, or 

other action that would result in the emergence of a successor entity; the creation or dissolution 

of a subsidiary, parent, or affiliate that engages in any acts or practices subject to this order; the 
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proposed filing of a bankruptcy petition; or a change in the business or corporate name or 

address. Provided, however, that, with respect to any proposed change in the corporation about 

which respondent learns less than thirty (30) days prior to the date such action is to take place, 

respondent shall notify the Commission as soon as is practicable after obtaining such knowledge. 

Unless otherwise directed by a representative of the Commission in writing, all notices 

required by this Part shall be emailed to Debrief@ftc.gov or sent by overnight courier (not the 

U.S. Postal Service) to: Associate Director for Enforcement, Bureau of Consumer Protection, 

Federal Trade Commission, 600 Pennsylvania Avenue NW, Mail Stop M-8102B, Washington, 

DC 20580. The subject line must begin: “gDiapers, File No. 122 3268.” 

VI. 

IT IS FURTHER ORDERED that respondent shall, within sixty (60) days after the date 

of service of this order, file with the Commission a true and accurate report, in writing, setting 

forth in detail the manner and form in which respondent has complied with this order. Within 

ten (10) days of receipt of written notice from a representative of the Commission, respondent 

shall submit additional true and accurate written reports. Unless otherwise directed by a 

representative of the Commission in writing, all notices required by this Part shall be emailed to 

Debrief@ftc.gov or sent by overnight courier (not the U.S. Postal Service) to: Associate 

Director for Enforcement, Bureau of Consumer Protection, Federal Trade Commission, 600 

Pennsylvania Avenue NW, Mail Stop 8102-B, Washington, DC 20580. The subject line must 

begin: “gDiapers, File No. 122 3268.” 

 

VII. 

 This order will terminate on March 18, 2034, or twenty (20) years from the most recent 

date that the United States or the Commission files a complaint (with or without an 

accompanying consent decree) in federal court alleging any violation of the order, whichever 

comes later; provided, however, that the filing of such a complaint will not affect the duration of: 

A. Any Part in this order that terminates in less than twenty (20) years; 

B. This order’s application to any respondent that is not named as a defendant in 

such complaint; and 

C. This order if such complaint is filed after the order has terminated pursuant to this 

Part. 

 
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Provided further, that if such complaint is dismissed or a federal court rules that the respondent 

did not violate any provision of the order, and the dismissal or ruling is either not appealed or 

upheld on appeal, then the order will terminate according to this Part as though the complaint 

had never been filed, except that the order will not terminate between the date such complaint is 

filed and the later of the deadline for appealing such dismissal or ruling and the date such 

dismissal or ruling is upheld on appeal. 

By the Commission. 

Donald S. Clark 

Secretary 

SEAL 

ISSUED: March 18, 2014