[Federal Register Volume 63, Number 84 (Friday, May 1, 1998)]
[Rules and Regulations]
[Pages 24240-24251]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-11455]



[[Page 24239]]

_______________________________________________________________________

Part III





Federal Trade Commission





_______________________________________________________________________



16 CFR Part 260



Guides for the Use of Environmental Marketing Claims; Final Rule

Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 / Rules and 
Regulations

[[Page 24240]]



FEDERAL TRADE COMMISSION

16 CFR Part 260


Guides for the Use of Environmental Marketing Claims

AGENCY: Federal Trade Commission.

ACTION: Final revised guides.

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SUMMARY: The Federal Trade Commission (``Commission'') issued Guides 
for the Use of Environmental Marketing Claims (``guides'') on July 28, 
1992. The guides included a provision for public comment and review 
three years after adoption to determine whether there was a need for 
any modifications. In connection with this review, in July 1995 the 
Commission sought public comment on a variety of issues, and held a two 
day public workshop-conference on December 7 and 8, 1995. On October 
11, 1996, the Commission issued revised guides, but advised that it had 
not yet completed its review of the Recyclable and Compostable guides 
because of ongoing relevant consumer research. One purpose of the 
research was to examine whether ``recyclable'' and ``compostable'' 
claims continue to imply that consumers can recycle or compost the 
marketed product in their own area. Further, the Commission decided to 
seek additional public comment on the issue of whether product parts 
that can be reconditioned and/or reused in the manufacture of new 
products could be considered ``recyclable'' under the guides and 
whether products made from such reconditioned and/or reused parts could 
qualify as ``recycled'' under the guides. The Commission has now 
completed its review of the above issues and is issuing further 
amendments to the guides, as discussed below.
    The Compostable guide is amended to clarify that an unqualified 
compostable claim can be made if a product is compostable in a home 
compost pile or device, even if municipal or institutional composting 
facilities are not locally available. This is because consumers are 
likely to perceive claims of compostability to mean that a product may 
be composted in a home compost pile or device. The Recyclable guide is 
modified to allow the term ``recyclable'' to be used for a package or 
product that can be recovered from the solid waste stream for reuse or 
for the manufacture of another package or product, so long as the 
package or product can be collected through an established recycling 
program (thus including reused, reconditioned and remanufactured 
products). The guides retain the provision that, to make an unqualified 
recyclable claim, recycling collection programs should be available to 
a substantial majority of consumers or communities, but the Commission 
is modifying the suggested qualifying statement for when an unqualified 
claim is not appropriate. Further, a new example illustrates that the 
phrase ``Please Recycle'' is considered equivalent to a ``recyclable'' 
claim. In addition, the Recycled Content guide is amended to clarify 
that recycled content may consist of used, reconditioned or 
remanufactured components, as well as raw materials. Finally, the 
Commission is amending the guides to clarify that they apply to all 
forms of marketing, including digital or electronic media, such as the 
Internet and electronic mail, and to the marketing of services, as well 
as products and packages.

EFFECTIVE DATE: May 1, 1998.

FOR FURTHER INFORMATION CONTACT: Janice Podoll Frankle, Attorney, (202) 
326-3022, or Pablo Zylberglait, Attorney, (202) 326-3260, Division of 
Enforcement, Bureau of Consumer Protection, FTC, Washington, D.C. 
20580.

SUPPLEMENTARY INFORMATION:

I. Background

A. Purpose of the Guides

    Like other industry guides issued by the Commission, the 
Environmental Marketing Guides ``are administrative interpretations of 
laws administered by the Commission for the guidance of the public in 
conducting its affairs in conformity with legal requirements.'' 16 CFR 
1.5. The guides indicate how the Commission will apply Section 5 of the 
Federal Trade Commission Act (``FTC Act''), which prohibits unfair or 
deceptive acts or practices, in the area of environmental marketing 
claims. 15 U.S.C. 45. The guides apply to all forms of marketing of 
products and services to the public, whether through advertisements, 
labels, package inserts, promotional materials, or electronic media.

B. 1995 Federal Register Notice

    When the Commission issued the guides in 1992, it included a 
provision that three years after adoption, it would seek public comment 
on ``whether and how the guides need to be modified in light of ensuing 
developments.'' Pursuant to this provision, in a Federal Register 
Notice published on July 31, 1995 (``1995 Notice''), the Commission 
sought comment on a number of general issues relating to the guides' 
efficacy and the need, if any, to revise or update the guides. 60 FR 
38978. The Commission also sought comment on specific issues related to 
particular environmental claims addressed by the guides. In addition, 
the 1995 Notice announced that Commission staff would be conducting a 
public workshop-conference at the conclusion of the comment period to 
discuss issues raised by the written comments. The workshop was held on 
December 7 and 8, 1995.
    The Commission received 99 comments in response to the 1995 
Notice.<SUP>1</SUP> Some of those comments are relevant to the issues 
presented in the October 11, 1996 Federal Register Notice (``1996 
Notice''), discussed below.<SUP>2</SUP>
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    \1\ The comments came from 45 trade associations or trade 
association coalitions; 28 manufacturers, distributors or retailers; 
12 consumer, environmental or public advocacy organizations; 4 state 
government officials or bodies; 2 federal government agencies or 
officials; 2 certification organizations; 1 standards organization; 
1 city government official; 1 individual; 1 educational institution; 
1 consulting company; and 1 public-private recycling coalition.
    \2\ The comments are on the Commission's public record as 
Document Nos. B17512400001-B17512400099 for the 1995 Notice and 
B20818700001-B2081870227 for the 1996 Notice. The comments are cited 
in this Notice by the name of the commenter, reference to either the 
1995 Notice or the 1996 Notice, depending on which notice(s) was 
responded to by the commenter, a shortened version of the comment 
number, and the relevant page(s) of the comment, e.g., Virginia 
Automotive Recyclers Ass'n, 1996 Notice, #1 at 1. The transcript of 
the public workshop is on the Commission's public record as Document 
No. P954501. A complete list of commenters, the comments, a 
transcript of the workshop proceedings, and consumer perception 
studies conducted are available for inspection and copying in the 
Consumer Response Center, Room 130, Federal Trade Commission, 6th & 
Pennsylvania Ave., N.W., Washington, D.C. 20580.
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C. 1996 Federal Register Notice

    On October 11, 1996, the Commission published revised guides (1996 
Notice), which included revisions to the prefatory sections, as well as 
the following sections: General Environmental Benefits, Degradable/
Biodegradable/Photodegradable, Recycled Content, Source Reduction, 
Refillable, and Ozone Safe and Ozone Friendly. 61 FR 53311. At that 
time, the Commission advised that it was still in the process of 
reviewing the Recyclable and Compostable guides and wanted to evaluate 
the results of ongoing consumer research. The Commission also stated 
that it was seeking further public comment on the issue of whether 
product parts that can be reconditioned and/or reused in the 
manufacture of new products could be considered ``recyclable'' under 
the guides and whether products manufactured from such reconditioned 
and/or reused parts could qualify as ``recycled'' under the guides. In 
addition, the Commission reiterated its request for consumer

[[Page 24241]]

perception data for ``recyclable'' and ``compostable'' 
claims.<SUP>3</SUP>
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    \3\ For example, the 1995 Notice requested any empirical data 
relevant to whether consumers perceive that products made from 
reconditioned parts that would otherwise have been discarded should 
qualify as ``recycled'' products. Further, the 1995 Notice sought 
comment on certain issues relating to the Recyclable and Compostable 
guides and requested any empirical data regarding whether an 
unqualified recyclable or an unqualified compostable claim conveys a 
claim concerning local availability of recycling or composting 
programs and whether any evidence indicates that those guides should 
be modified, and if so, in what manner. In addition, the 1995 Notice 
stated that the available evidence suggested that certain qualifying 
disclosures outlined in the Recyclable and Compostable guides may be 
more effective than others in conveying to consumers that facilities 
may not be available in their community to recycle or compost the 
product. Thus, the Commission asked for any evidence indicating that 
certain of those qualifying disclosures should be modified, and if 
so, in what manner.
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    In response to the 1996 Notice, 227 comments were 
received.<SUP>4</SUP> Part II summarizes the comments on the 1996 
Notice, and comments on the 1995 Notice that are relevant to the issues 
raised in the 1996 Notice.
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    \4\ These came from 201 automotive parts dealers, ``automotive 
recyclers,'' automotive salvage companies, dismantlers, wreckers and 
rebuilders; 17 trade associations (11 of which represent 
``automotive recyclers,'' rebuilders, and dismantlers); 2 
manufacturers; 1 federal government agency; 1 public-private 
recycling hotline; 1 municipal recycling and solid waste commission; 
1 association of recycling managers; 1 state office of environmental 
assistance; 1 non-profit public service corporation; and 1 
individual.
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D. Consumer Survey Evidence

    The consumer perception survey evidence received by the Commission 
is relevant to the issues raised in the 1996 Notice. The Council on 
Packaging in the Environment (``COPE'') conducted a national telephone 
survey in April 1996, providing evidence on whether consumers consider 
products made from reconditioned parts to be ``recycled.'' COPE surveys 
from March 1993, September 1993, and December 1994 provide empirical 
data concerning consumers' interpretations of ``recyclable'' and 
``Please Recycle'' claims. A Roper Starch Worldwide, Inc. (``Roper 
Starch'') survey of consumers conducted through personal, in-home 
interviews during December 1996, provides information on how recyclable 
claims are interpreted. Research performed by professors from American 
University, through mall-intercept interviews, provides empirical data 
on consumer interpretation of recyclable claims and certain 
disclosures.<SUP>5</SUP>
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    \5\ Although the revised guides are effective immediately, the 
Commission will take into consideration the date when materials were 
authorized to be printed in conformance with the former guides.
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II. Summary of Comments and Modifications to the Guides

A. The Compostable Guide

1. Summary of Comments Regarding the Compostable Guide
    Only a few comments directly addressed the Compostable guide, which 
states that an unqualified compostable claim might be deceptive unless 
a product can be safely composted at home and in a municipal composting 
facility. The Society of the Plastics Industry, Inc. (``SPI'') stated 
that home composting appears to be the primary means of composting 
practiced by consumers and thus asked the Commission to clarify that an 
unqualified compostable claim can be made for an item that can be 
safely composted in a home compost pile or device.<SUP>6</SUP> SPI 
stated that it was unaware of any data indicating that a product 
compostable in a home compost pile or device would not be compostable 
in a municipal composting facility. SPI stated further that the lack of 
municipal composting facilities near the consumer is irrelevant to the 
validity of an unqualified compostable claim. SPI noted, however, that 
if a product is only compostable in a municipal facility, then that 
fact should be disclosed and a qualifier regarding local availability 
should be used. Another commenter recommended modifying the definition 
of ``compostable'' to indicate that the advertised product ``must break 
down in approximately the same time as the materials it is generally 
composted with.'' <SUP>7</SUP>
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    \6\ SPI, 1995 Notice, #53 at 25; 1996 Notice, #70 at 2.
    \7\ Mobil Chemical Co. (``Mobil''), 1995 Notice, #38 at 4. The 
guide currently states that a compostable claim means that a product 
will break down in a ``safe and timely manner.'' The Commission 
interprets the ``timely manner'' language to mean that the product 
or package will break down in approximately the same time as the 
materials with which it is composted.
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2. Modifications to the Compostable Guide
    Because there are fewer than 20 municipal solid waste composting 
facilities in the United States, the Commission now believes that few 
consumers are likely to know about and associate a compostable claim 
with municipal solid waste composting facilities.<SUP>8</SUP> Moreover, 
the Commission agrees with SPI that a product technically capable of 
being composted in a home compost pile or device would also be 
compostable in a municipal composting facility. Thus, the Compostable 
guide and Example 1 have been revised to clarify that an unqualified 
compostable claim can be made if a product is compostable in a home 
compost pile or device even if municipal or institutional <SUP>9</SUP> 
composting facilities are not locally available.<SUP>10</SUP> The guide 
still states, however, that if a claim is made that a product is 
compostable in a municipal or institutional composting facility, then 
the claim may need to be qualified to the extent necessary to avoid 
deception about the limited availability of composting facilities.
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    \8\ This view is supported by a 1991 University of Illinois 
study about consumer perceptions of such terms as ``degradable/
biodegradable,'' ``compostable,'' ``recyclable,'' and 
``environmentally friendly.'' When consumers were asked the open-
ended question, ``What does the term compostable mean?,'' 44.2% of 
respondents defined compostable in terms of a home compost pile. The 
study reported that consumers did not mention municipal composting 
programs in their definitions of ``compostable.''
    \9\ The word ``institutional'' has been added because there are 
also privately operated composting facilities.
    \10\ Example 3 has been deleted because revised Example 1 now 
illustrates the same concept. In addition, references to ``yard 
waste'' have been changed to ``yard trimmings'' because the 
Environmental Protection Agency (``EPA'') advised that the latter 
term is becoming more prevalent.
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B. The Recyclable and Recycled Content Guides

1. Claims Regarding Local Availability of Recycling Facilities
    a. Background. The Recyclable guide states that consumers are 
likely to interpret unqualified recyclable claims to imply that 
facilities are available in their community to recycle the product, and 
that if facilities are not available to a substantial majority of 
consumers or in a substantial majority of communities, then such claims 
should be qualified. An important issue that arose in the review of the 
Recyclable guide concerned whether this interpretation of an 
unqualified claim is still correct. Closely related to this issue is 
how consumers interpret the increasing number of claims such as 
``Please Recycle'' in the marketplace, and if these claims also need 
qualification when available facilities are limited.
    b. Summary of Comments Regarding the Local Availability Standard 
and ``Please Recycle'' Claims. The issue of how consumers interpret 
unqualified recyclable claims and whether the term implies anything 
about the availability of local recycling facilities provoked a wide 
range of comments. A few commenters contended that no qualifications 
about limited availability were necessary.<SUP>11</SUP> Most of the

[[Page 24242]]

approximately 40 commenters who specifically discussed recyclable 
claims, however, only favored a less restrictive approach to when the 
term ``recyclable'' should be qualified. One commenter stated that the 
assertion that some consumers may not understand that ``recyclable'' 
means that the package is recyclable only if there is a recycling 
program in the community, seems to unnecessarily question the 
intelligence of consumers.<SUP>12</SUP> Another commenter recommended 
that the Commission indicate that only claims of recyclability that 
imply availability of programs (rather than recyclable claims in 
general) may require qualification to the extent necessary to avoid 
consumer deception about limited availability of recycling programs and 
collection sites.<SUP>13</SUP> Another commenter stated that the 
Commission would promote dissemination of information and spur demand 
for increased recycling facilities by modifying the recyclability 
standards to allow claims of recyclability where a material can be 
recycled by an accepted, practical method, whether or not facilities to 
do so are widely available.<SUP>14</SUP>
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    \11\ International Dairy Foods Ass'n (``IDFA''), 1995 Notice, 
#13 at 2-3; American Bakers Ass'n, 1995 Notice, #23 at 1-2; 
Paperboard Packaging Council (``PPC''), 1995 Notice, #67 at 1-6.
    \12\ IDFA, 1995 Notice, #13 at 2.
    \13\ Grocery Manufacturers of America (``GMA''), 1995 Notice, 
#59 at 10, 20.
    \14\ Soap and Detergent Ass'n (``SDA''), 1995 Notice, #65 at 9. 
See also Paper Recycling Coalition (``PRC''), 1995 Notice, #91 at 6 
(the Commission's recyclable standard may hinder the growth of 
recycling markets by limiting the recovery of materials for which 
there is a demand, but for which the threshold to use an unqualified 
``recyclable'' claim has not been met).
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    Commenters also recommended that the threshold for making 
unqualified ``recyclable'' claims be lowered to permit such claims if 
facilities are available to a significant percentage of the population 
nationwide, or to a reasonable portion of the population (rather than 
the current threshold of substantial majority).<SUP>15</SUP> Several 
commenters suggested that the Commission harmonize its guides with the 
draft standards being developed within the International Organization 
for Standardization (``ISO''), which would require that collection 
facilities be available to a ``reasonable portion'' of the 
population.<SUP>16</SUP> One commenter contended that the ``reasonable 
portion'' language is more manageable than the ``substantial majority'' 
wording in the guides and would require less cumbersome data 
collection.<SUP>17</SUP>
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    \15\ 3M, U.S. Sub-TAG to ISO, National Ass'n of Manufacturers, 
Chemical Manufacturers Ass'n (``3M''), 1995 Notice, #32 at 2 
(reasonable portion); Eastman Kodak Co. (``Kodak''), 1995 Notice, 
#42 at 3 (reasonable portion); American Plastics Council, 1995 
Notice, #64 at 15 (significant portion); National Ass'n of 
Photographic Manufacturers, Inc. (``NAPM''), 1995 Notice, #83 at 2 
(reasonable portion).
    \16\ 3M, 1995 Notice, #32 at 2; Kodak, 1995 Notice, #42 at 3; 
NAPM, 1995 Notice, #83 at 2.
    \17\ Kodak, 1995 Notice, #42 at 3.
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    In contrast, several commenters urged the Commission to retain the 
current recyclable qualifications.<SUP>18</SUP> EPA stated that claims 
of recyclability need to be qualified as recommended in the guides 
because there is no real benefit to consumers in being informed that a 
product or package is technically recyclable if a program is not 
available enabling them to recycle the material after use.<SUP>19</SUP> 
EPA also stated that it would strongly oppose allowing the unqualified 
use of the term ``recyclable'' unless it can be definitely proven that 
such usage would not contribute to the placement of improper materials 
into recycling bins.
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    \18\ Helene Curtis, Inc., 1995 Notice #8 at 3; National 
Recycling Coalition Inc., 1995 Notice, #73 at 1.
    \19\ EPA, 1995 Notice, #22 at 2, 5; 1996 Notice, #215 at 1-2.
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    Another commenter maintained that the substantial increase in 
curbside collection programs over the past few years does not obviate 
the problem because the availability of curbside collection can itself 
mislead consumers about the recycling properties of certain 
materials.<SUP>20</SUP> A recycling association noted that false claims 
of recyclability waste consumers' time both in preparing materials to 
be recycled and in sorting through material not picked up because of 
contamination with non-recyclables.<SUP>21</SUP> The commenter stated, 
for example, that its members had to explain to consumers why the 
recycling crew did not take the corrugated takeout pizza boxes labeled 
``recyclable,'' but which, in fact, were not recycled in the community 
where the pizza was sold.
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    \20\ Aluminum Ass'n, Inc., 1995 Notice, #66 at 3-5.
    \21\ Ass'n of Recycling Managers, Inc., 1995 Notice, #77 at 2, 
5.
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    Another commenter urged the Commission to modify the guides to 
limit the use of the unqualified claim ``recyclable'' to only those 
products and materials that are accepted for recycling in the majority 
of curbside recycling programs across the country or in the communities 
where the product is sold or distributed, or are accepted for recycling 
at the point of purchase or distribution, or have demonstrated a 
recycling rate of 50% or better nationally or in the communities where 
the product is sold or distributed.<SUP>22</SUP> The Environmental 
Defense Fund (``EDF'') stated that, to avoid consumer deception at the 
point of purchase, the qualifying language accompanying a claim should 
explicitly state the current extent of availability of facilities and 
programs required to fulfill the claim, and therefore avoid placing the 
burden on consumers to determine local availability.<SUP>23</SUP> Two 
university professors who conducted research on recycling claims also 
suggested stronger qualifications.<SUP>24</SUP>
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    \22\ Californians Against Waste Foundation, 1995 Notice, #81 
<greek-a><greek-t> 3.
    \23\ EDF, 1995 Notice, #93 at 4.
    \24\ Professors Robert N. Mayer and Brenda J. Cude (``Mayer & 
Cude''), 1995 Notice, #20 at 3.
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    The comments on statements such as ``Please Recycle'' also were 
mixed. Several industry commenters stated that statements like ``Please 
Recycle'' are exhortations to encourage consumers to recycle and not 
claims about whether a particular product is widely 
recyclable.<SUP>25</SUP> NSDA explained that in the soft drink 
industry, the three-chasing-arrows logo is almost always displayed in 
conjunction with the ``Please Recycle'' message, and the industry does 
not want any special meaning to be attached to the logo or the 
adjoining ``Please Recycle'' phrase, which simply asks the consumer to 
consider recycling.<SUP>26</SUP>
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    \25\ GMA, 1995 Notice, #59 at 19 (such claims energize consumers 
to recycle items that can be recycled; curbing the use of ``Please 
Recycle'' might threaten upward trend of recycling rates); National 
Soft Drink Ass'n (``NSDA''), 1995 Notice, #62 at 6; SDA, 1995 
Notice, #65 at 9; Chemical Specialties Manufacturers Ass'n, 1995 
Notice, #72 at 15.
    \26\ NSDA, 1995 Notice, #62 at 6.
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    In contrast, EPA stated that it viewed ``Please Recycle'' as 
similar to an unqualified claim of recyclability.<SUP>27</SUP> EPA also 
expressed concern that the phrase ``Please Recycle'' accompanied by the 
chasing-arrows symbol may simply be an effort by marketers to display 
that symbol without having to make a qualified recyclable claim. EPA 
stated that such messages are so similar to a claim of recyclability 
that when unqualified, they may be deceptive. University researchers 
Mayer & Cude suggested revising the guides to clarify that the phrase 
``Please Recycle'' is not adequate to inform consumers about a 
product's recyclability.<SUP>28</SUP> Several Attorneys General 
recommended modifying the guides to state that the exhortation to 
recycle be expressly qualified whenever collection facilities are 
limited for the material in question by stating the percentage of the 
population that cannot recycle the material, followed by information on 
how to find out whether the material is recyclable in the consumer's 
area.<SUP>29</SUP>
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    \27\ EPA, 1995 Notice, #22 at 2.
    \28\ Mayer & Cude, 1995 Notice, #20 at 5.
    \29\ Attorneys General of the States of Arizona, California, 
Connecticut, Florida, Massachusetts, Minnesota, Missouri, New York, 
Pennsylvania, Tennessee, Washington, and Wisconsin (``Attorneys 
General''), 1995 Notice, #45 at 3.

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[[Page 24243]]

    c. Consumer Perception Data Regarding the Local Availability 
Standard and ``Please Recycle'' Claims. In the December 1994 COPE 
survey, respondents were asked if a ``Please Recycle'' claim on a 
package meant that collection programs existed in their community to 
recycle that package. Approximately one-third of consumers stated that 
the ``Please Recycle'' label meant that they could recycle the product 
in their community. When consumers were asked if the ``Please Recycle'' 
label on a package meant that the package can be recycled by consumers 
in all, most, some, a few or no communities, over one-half responded 
that the claim meant that the product could be recycled by consumers in 
``all'' or ``most'' communities nationwide.
    One question in the Roper Starch survey asked consumers if the 
claim of ``recyclable package'' on a cereal box meant that there 
definitely is a recycling facility for such packages in the consumers' 
communities. Of the respondents, 37% thought that the ``recyclable'' 
claim meant that there definitely was a recycling facility in their 
community, while 50% thought that there definitely was not a recycling 
facility in their community.
    Although the research described above provides some consumer survey 
data regarding ``Please Recycle'' and local availability claims, in the 
1996 Notice the Commission stated that it also wanted to evaluate the 
results of ongoing consumer research related to the Recyclable and 
Compostable guides. In July 1997, the Commission received the results 
of that research, which was conducted by Professors Manoj Hastak and 
Michael Mazis and funded by American University. Using a mall-intercept 
approach, respondents were exposed to one of two product packages 
(cardboard milk carton or plastic petroleum jelly jar) with one of 
three different labels on the package (``Recyclable,'' ``Please 
Recycle,'' or no environmental claim).
    After examining one package (either milk or petroleum jelly), 
respondents were asked a series of questions designed to measure their 
perceptions of the package's recyclability. Consumers were asked how 
likely or unlikely it is that the package can be recycled in their 
community.<SUP>30</SUP> Of the respondents exposed to the package 
without any environmental claim, between 46% and 54% (for milk and 
petroleum jelly, respectively) indicated that it was likely or 
extremely likely that the package was recyclable in their community. 
Over 72% of the respondents exposed to the ``recyclable'' label 
indicated that it was likely or extremely likely that the package was 
recyclable in their community. Over 75% of the respondents who were 
shown the ``Please Recycle'' label indicated that it was likely or 
extremely likely that the package was recyclable in their community.
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    \30\ The communities that were selected for this study were 
chosen because neither of the product packages used in the study 
could be recycled curbside in these areas; there were no known drop 
off facilities in these communities that would accept either the 
milk carton or the petroleum jelly jar; and the brand names of the 
products were not sold locally.
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    Then, the respondents were asked how likely or unlikely it is that 
the package can be recycled in most communities in the United States. 
Of the respondents exposed to the package without any environmental 
claim, between 40% and 46% (for milk and petroleum jelly, respectively) 
indicated that it was likely or extremely likely that the package can 
be recycled in most communities in the United States. Approximately 70% 
of the respondents who were shown the ``recyclable'' or ``Please 
Recycle'' label indicated that it was likely or extremely likely that 
the package can be recycled in most communities in the United States.
    d. Retention of the Local Availability Standard; Amendment of the 
Recyclable Guide Regarding ``Please Recycle'' Claims. As discussed 
above, recent survey data confirm that the presence of either the 
``recyclable'' claim or the ``Please Recycle'' claim significantly 
increased the percentage of consumers who believed the package to be 
recyclable in their community and in most communities in the United 
States. The large increase in responses to the ``recyclable'' and 
``Please Recycle'' labels over where no claim is made shows that the 
claims make a difference in consumer perception of the availability of 
recycling facilities in their communities and in most United States 
communities. Further, there were no statistically significant 
differences in response to the two questions between the ``recyclable'' 
and ``Please Recycle'' groups. The Commission concludes that these 
results indicate that a local availability claim is conveyed to 
consumers by an unqualified ``recyclable'' claim.<SUP>31</SUP> The 
study further indicates that packages with the claim ``Please Recycle'' 
are just as likely to be perceived as recyclable as packages with the 
claim ``recyclable,'' and also to convey a local availability claim.
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    \31\ This conclusion is also supported by the December 1994 COPE 
survey. The Roper Starch data also shows that a significant 
percentage of consumers take a local availability claim from an 
unqualified ``recyclable'' claim, although a greater percentage did 
not. This result may be due, at least in part, to the survey's 
emphasis on the word ``definitely.''
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    Further, some commenters indicated that unqualified claims of 
recyclability where there is no local availability of recycling 
programs, mislead consumers into placing improper materials into 
recycling bins and thus the claims can increase the costs of recycling 
programs. It also was pointed out that while a product may be 
technically recyclable, if a program is not available allowing 
consumers to recycle the product, there is no real value to consumers. 
Thus, the Commission has decided to retain the current disclosure 
system for ``recyclable'' claims. Unqualified ``recyclable'' claims 
should only be made when a package or product is recyclable for a 
substantial majority of consumers or communities; in all other 
instances, an appropriate disclosure should accompany such 
claims.<SUP>32</SUP>
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    \32\ The Commission is cognizant that ISO's ``reasonable 
portion'' environmental labeling standard went out in April 1998 for 
comments and balloting and will go out for final balloting toward 
the end of 1998. The Trade Agreements Act of 1979 states that any 
federal agency must, in developing standards, ``take into 
consideration international standards and shall, if appropriate, 
base the standards on international standards.'' Trade Agreements 
Act of 1979, title IV, section 402, 93 Stat. 242 (1979) (codified as 
amended at 19 U.S.C. 2532(2)(A) (Supp. 1995)). Since the reasonable 
portion standard has not been formally adopted (or defined) by ISO, 
the Commission believes that it would be premature to contemplate 
revising the substantial majority standard at this time. Of course, 
at any time the Commission may alter or revise the guides based on 
international developments or other relevant changes.
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    In addition, recent survey data reveal that a significant majority 
of consumers equate the claim ``Please Recycle'' with unqualified 
``recyclable'' claims. Accordingly, new Example 11 to the Recyclable 
guide illustrates that the phrase ``Please Recycle'' is equivalent to a 
``recyclable'' claim and, thus, that unqualified usage should be 
limited to products that can be recycled locally by a substantial 
majority of consumers or communities.
2. Safe Harbor Disclosures for Products or Packages That Are Not 
Recyclable in a Substantial Majority of Communities
    a. Summary of Comments Regarding Disclosures. Under the Recyclable 
guide, the Commission adopted a three-tiered disclaimer approach, 
depending on the availability of recycling facilities for a package or 
product. The first tier is when recycling facilities are available to a 
substantial majority of consumers or communities nationwide; in such 
cases,

[[Page 24244]]

unqualified recyclable claims can be made. The second tier is when 
facilities are available to a significant percentage of the population 
or communities, but not yet to a substantial majority of consumers or 
communities. In that situation, a suggested qualification is ``Check to 
see if recycling facilities exist in your area.'' The third tier is 
when facilities are available to less than a significant percentage of 
communities or the population. Then, a recommended disclosure would be 
to state that the product is only recyclable in a few communities 
nationwide. Also, the guide provides that an alternative approach to 
qualifications would be to disclose the approximate percentage of 
communities or the population to whom recycling programs are available 
for the product.
    Almost half of the commenters on recyclable claims urged the 
Commission to adopt different qualifiers, contending that the current 
``check to see'' qualifier is too stringent. Several commenters 
suggested that the Commission revise the guides to allow for the 
qualifier ``recyclable--where facilities exist,'' in addition to the 
``Check to see if recycling facilities exist in your area'' 
qualifier.<SUP>33</SUP> Several commenters stated that the qualifier 
``recyclable where facilities exist'' was sufficient to advise a 
consumer that the product might not be recyclable in the consumer's 
area.<SUP>34</SUP> Commenters also favored claims such as ``recyclable 
through participating photofinishers'' and ``recyclable through 
participating dealers.'' <SUP>35</SUP> Another commenter urged the 
Commission to streamline the lengthy qualifications for ``recyclable'' 
claims offered as examples in the guides.<SUP>36</SUP>
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    \33\ Foodservice & Packaging Institute, Inc., 1995 Notice, #63 
at 8-9 (if the claims are qualified in a positive manner, the 
consumer may be encouraged to seek out recycling opportunities that 
exist in the community, or by requesting information, create demand 
for expansion of recycling programs); Amoco Chemical Co., 1995 
Notice, #35 at 2-3 (it is necessary to balance the need to inform 
the consumer about recyclable products with the need to avoid 
overstating the consumer's ability to recycle those products); 
Mobil, 1995 Notice, #38 at 3-4 (negative qualifiers such as 
``recycling programs may not exist in your area'' are 
counterproductive, while positive qualifiers encourage the consumer 
to seek out recycling opportunities).
    \34\ Washington Legal Foundation, 1995 Notice, #84 at 3 
(manufacturers may reasonably conclude that exhorting consumers to 
``check to see if recycling facilities exist in your area'' is a 
misuse of label and advertising space); SPI, 1996 Notice, #70 at 3.
    \35\ Kodak, 1995 Notice, #42 at 3; NAPM, 1995 Notice, #83 at 2.
    \36\ American Frozen Foods Institute, 1995 Notice, #85 at 3 
(suggesting that manufacturers must be confident that qualifications 
that use fewer words and provide less detailed information than the 
Commission has suggested may be viewed as appropriate by the 
agency).
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    The Ford Motor Company (``Ford'') contended that the current guides 
do not adequately address the recyclability of durable goods such as 
automobiles, because the guides' contemplate situations involving only 
curbside or drop off recycling programs.<SUP>37</SUP> Ford noted that 
vehicle owners have no difficulty availing themselves of various 
automotive disposal and recycling services, and therefore, recommended 
that automobile manufacturers be permitted to make unqualified claims 
of recyclability, even though their collection sites are not those 
contemplated by the guides.
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    \37\ Ford, 1995 Comment, #29 at 4-5.
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    The U.S. Environmental Recycling Hotline (``Hotline'') suggested 
that product labels using its 1-800-CLEANUP telephone number in 
conjunction with a ``recyclable'' claim could be a ``safe harbor,'' if 
used appropriately.<SUP>38</SUP> Another commenter maintained that 
companies using such terms as ``recyclable,'' ``compostable,'' 
``degradable,'' and ``refillable'' should be required to print a 
telephone number near the claim so that confused consumers can have 
their questions answered.<SUP>39</SUP>
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    \38\ Hotline, 1996 Notice, #216 at 2. The Hotline explained that 
its telephone number provides recycling drop off center location 
information and community-specific recycling education information 
in all 50 states.
    \39\ California Integrated Waste Management Board, 1995 Notice, 
#74 at 2.
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    Several State Attorneys General stated that the ``check to see'' 
qualifier incorrectly implies that the most likely problem with an 
unqualified recyclable claim is the possibility of there not being any 
recycling facilities in the consumer's locality.<SUP>40</SUP> The 
Attorneys General suggested that the problem consumers are more likely 
to encounter is that the recycling facilities do not collect the 
material in question. They suggested that a clear, easily understood 
qualification be used when collection sites for the material in 
question are available to some but not all consumers or communities, 
for instance, ``Not recyclable in 75% of U.S. communities. Check to see 
if recyclable in your area.''
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    \40\ Attorneys General, 1995 Notice, #45 at 4.
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    b. Consumer Perception Data Regarding Recyclable Disclosures. In 
the March 1993 COPE survey, half of those interviewed were asked 
whether an unqualified ``recyclable'' claim meant that collection 
programs existed in their community to recycle the product, and the 
other half were asked the same question with the qualified 
``Recyclable--check to see if recycling facilities exist in your area'' 
disclosure. In each case, more than 40% of respondents answered ``yes'' 
(i.e., the claim meant that collection programs existed in their 
community to recycle the product), regardless of whether they were 
exposed to the unqualified or qualified claim. There was no 
statistically significant difference between the two responses (46% for 
the unqualified claim; 43% for the qualified claim). The Commission 
believes that these results indicate that the ``check to see'' 
disclosure may not be effective in conveying to consumers that local 
facilities may not be available to recycle the product.
    In the September 1993 survey, COPE tested a qualification similar 
to that recommended in the Compostable guide when facilities are 
available to a significant percentage, but not a substantial majority 
of the population (i.e., ``Appropriate facilities may not exist in your 
area''). Half of those questioned were asked whether an unqualified 
``recyclable'' claim meant that recycling programs for the product 
existed in their community and the other half were asked the same 
question when exposed to the claim: ``Recyclable--recycling programs 
for this bottle may not exist in your area.'' Of those exposed to the 
unqualified claim, 45% responded that the claim meant that facilities 
existed in their area, and 48% responded that it did not. Of consumers 
exposed to the qualified claim, ``Recyclable--recycling programs for 
this bottle may not exist in your area,'' 29% responded that it meant 
that recycling programs for that bottle existed in their area, and 59% 
responded that the claim did not mean that recycling programs existed 
in their area. The Commission believes that these results indicate that 
the more cautionary disclosure, i.e., ``Recycling programs [for this 
product] may not exist in your area,'' is more successful in conveying 
to consumers that facilities may not be available locally, than the 
``Check to see if recycling facilities exist in your area'' disclosure.
    c. Amendments Regarding Safe Harbor Recyclable Disclosures. Based 
on the comments and the consumer perception data discussed above that 
found that the ``check to see'' qualification did not significantly 
change consumers'' perceptions of local availability of collection 
sites when compared with an unqualified ``recyclable'' claim, the 
Commission is withdrawing the safe harbor ``Check to see if recycling 
facilities exist in your area.'' The Commission also concludes that the 
alternatives suggested by some commenters, such as ``recyclable where 
facilities exist'' would be inadequate to change consumer perception. 
In

[[Page 24245]]

particular, this alternative would suffer from the problem identified 
by the Attorneys General in that such a claim could imply that if any 
facility exists in a consumer's community, then the item is recyclable, 
when, in fact, that facility may not recycle the product. Example 4 of 
the Recyclable guide (where this issue is presented) has been revised 
to suggest the following types of disclosures: ``Recycling programs for 
this bottle [product or packaging] may not exist in your area'' or 
``This bottle [product or packaging] may not be recyclable in your 
area.'' <SUP>41</SUP> Because the new safe harbors are tied to the 
marketed product as opposed to recycling programs generally, they 
reduce the possibility that consumers may infer that because a 
recycling program exists in their area, that any product represented as 
``recyclable'' can, in fact, be recycled in their local program.
---------------------------------------------------------------------------

    \41\ The new qualifications also are consistent with the one 
suggested in the Compostable guide: ``Appropriate facilities may not 
exist in your area.''
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3. Reused and/or Reconditioned Parts Marketed as ``Recycled'' or 
``Recyclable''
    a. Background. In the 1995 Notice, the Commission specifically 
sought comment as to whether consumers perceive that products made from 
reconditioned parts that would otherwise have been thrown away are 
``recycled'' products, and what modifications, if any, should be made 
to the guides to address these consumer perceptions. The Commission 
received no empirical evidence in response to that request, but did 
receive several comments that discussed the issue. In the 1996 Notice, 
the Commission stated that it had determined to give further 
consideration to the question, as well as to the related issue of 
whether product parts that can be reconditioned and/or reused in the 
manufacture of new products should be considered ``recyclable'' if 
adequate infrastructures for collecting the parts are available.
    At that time, the Recycled Content guide defined ``recycled 
content'' as material that a marketer can substantiate has been 
recovered or otherwise diverted from the waste stream. This definition 
could be interpreted to include products made from reconditioned and/or 
reused parts, as well as products made from products converted into raw 
materials, such as steel made from melted down cans. The 1996 Notice 
pointed out, however, that the Recyclable guide stated that for 
something to be recyclable it must be diverted from the solid waste 
stream for use as ``raw materials in the manufacture or assembly of a 
new product or package.'' Thus, the 1996 Notice concluded that product 
parts that are capable of being reconditioned and/or reused in the 
manufacture of new products are not considered ``recyclable'' under the 
guides, because the parts are not actually reprocessed into raw 
materials before reuse.
    b. Summary of Comments Regarding Reused and/or Reconditioned Parts 
as ``Recycled'' or ``Recyclable''. There was a consensus among those 
commenting that reused and/or reconditioned automotive parts should be 
permitted to be called ``recycled.'' Approximately 207 comments to the 
1996 Notice were patterned after, or similar to, a form letter from the 
Automotive Recyclers Association (``ARA''), a trade association 
representing automotive parts dealers, ``automotive recyclers,'' 
automotive salvage companies, dismantlers, and wreckers.<SUP>42</SUP> 
These commenters stated that the automotive recycling industry has been 
a pioneer in the recycling movement for over 50 years and that the 
products they sell have been and must continue to be described as 
``recycled.'' They contended that by using viable parts removed from 
vehicles bound for the waste stream, their products are reintroduced 
into commerce without wasting additional natural resources. The used 
automotive parts dealers, dismantlers, and salvage companies commented 
that they consider themselves to be ``professional automotive 
recyclers'' <SUP>43</SUP> and one stated that ``recycled'' was the 
automotive industry's term first, before everyone else ``jumped on the 
environmental bandwagon.'' <SUP>44</SUP>
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    \42\ Attached to many of these letters were petitions containing 
the names and addresses of customers who stated: ``[I] support 
reused parts being described as ``recycled.'' I understand the 
quality of the product I am buying when it is advertised as 
``recycled'' and believe the service this company provides should 
continue to be recognized as recycling.'' Approximately 2,190 names 
of customers were on the petitions. See, e.g., Branch Auto Parts, 
1996 Notice, #38 at 2; Alliance Auto Parts Inc., 1996 Notice, #48 at 
2.
    \43\ See, e.g., B & K Auto Salvage, 1996 Notice, #124 at 1; 
Greensboro Auto Parts Co., Inc., 1996 Notice, #128 at 1; EL & M Auto 
Recycling, Inc., 1996 Notice, #161 at 1; Automotive Parts Rebuilders 
Ass'n (``APRA''), 1996 Notice, #102 at 4 (noting also that many used 
automotive parts dealers have the word ``recycling,'' or some 
variation of it, in their names).
    \44\ BIG Truck Salvage, Inc., 1996 Notice, #77 at 1.
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    Several commenters said that customers are not confused when they 
buy a ``recycled'' automotive part because they realize that they are 
getting a used part for less money, i.e., used automotive parts cost 
30-90% of the price of new parts.<SUP>45</SUP> Other commenters said 
recycled parts give consumers an alternative repair option and help 
reduce the unnecessary production of new parts.<SUP>46</SUP> Some 
commenters noted that recycling automotive parts also helps keep 
vehicle insurance affordable because automotive recyclers buy damaged 
vehicles from insurance companies and resell the recycled parts 
(indirectly) to insurance companies to repair other damaged 
vehicles.<SUP>47</SUP> Another commenter suggested that the sale of 
many used parts as component assemblies, such as complete engine 
assemblies, reduces installation time and thus saves labor 
costs.<SUP>48</SUP> That commenter also pointed out that the automotive 
dismantler may be the only source of parts for the consumer who owns an 
older vehicle.
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    \45\ Georgia Automotive Recyclers Ass'n, 1996 Notice, #117 at 1; 
Bliss Auto Wreckers, 1996 Notice, #118 at 1. See also Michael W. 
Gibson, Ft. Worth, TX, Controller of the following companies: AAA 
Small Car World, Auto Recyclers of Houston, Budget American & Import 
Auto Parts, All Auto Recyclers of San Antonio, Auto Recyclers of 
Austin and Auto Recyclers of Ft. Worth (``Michael W. Gibson''), 1996 
Notice, #78 at 1 (customers are not generally confused when products 
are described as ``recycled,'' because they are almost always 
referred to as ``recycled used parts''; these parts cost 50% or 
less, of the cost of a new or rebuilt/remanufactured part); Palmer's 
Auto Salvage (``Palmer's''), 1996 Notice, #43 at 3 (30-60%); Arizona 
Automotive Recyclers Ass'n (``Arizona Recyclers''), 1996 Notice, #99 
at 2 (50%).
    \46\ See, e.g., Midway Auto Parts, 1996 Notice, #2 at 1; 
Autosalvage of Ithaca Inc., 1996 Notice, #40 at 1; Cousineau Auto 
Inc., 1996 Notice, #85 at 1.
    \47\ Route 19 Auto Salvage Inc., 1996 Notice, #39 at 1; Lynnwood 
Auto Wreckers Incorporated, 1996 Notice, #59 at 1. See also 
Pennsylvania Automotive Recycling Trade Society, 1996 Notice, #15 at 
1; Palmer's, 1996 Notice, #43 at 11; Don's Automotive Mall, Inc. 
(``Don's''), 1996 Notice, #92 at 10; Arizona Recyclers, 1996 Notice, 
#99 at 2.
    \48\ Don's, 1996 Notice, #92 at 4.
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    ARA stated that the Commission should consider the impact on the 
used automotive parts industry if it does not permit reused parts to be 
labeled as ``recycled,'' and suggested that failure to do so would 
provide an unfair competitive advantage for products made from recycled 
raw materials.<SUP>49</SUP> ARA therefore recommended revising the 
Recyclable guide to incorporate reused automotive components as a 
qualifying use for the term ``recyclable.'' <SUP>50</SUP> ARA further 
suggested that reused automotive parts should be included in the 
guidance regarding the Recycled Content guide.
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    \49\ ARA, 1996 Notice, #101 at 8.
    \50\ ARA, 1995 Notice, #71 at 2, 6. See also ARA, 1996 Notice, 
#101 at 1-9.
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    In contrast, PRC expressed concern that any expansion of the term 
``recycling'' would confuse consumers because they would have no means 
of distinguishing between used or remanufactured products and newly 
manufactured products made from raw

[[Page 24246]]

materials.<SUP>51</SUP> Similarly, Pitney Bowes, while favoring an 
expansion of the use of ``recycled'' and ``recyclable,'' urged the 
Commission to distinguish among products that are made from 
reconditioned parts, reused parts, and remanufactured parts because 
they differ in specifications, product disclosures to the consumer, 
warranties, and manufacturing processes.<SUP>52</SUP> Ford pointed out 
that in the automotive industry, the use of the term ``recycled'' 
generally means that a part has been removed from a scrap vehicle and 
resold with little or no work performed on it.<SUP>53</SUP> A 
``remanufactured'' part, in contrast, has undergone substantial 
cleaning, repair and reworking and under industry practice this part 
would not be considered ``recycled.'' Because restoration work has been 
performed on rebuilt and remanufactured parts, while recycled vehicle 
parts are often sold ``as is,'' APRA noted that some rebuilders may not 
desire to use the term ``recycled,'' but they should not be precluded 
from doing so.<SUP>54</SUP>
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    \51\ PRC, 1996 Notice, #100 at 1-2.
    \52\ Pitney Bowes, 1996 Notice, #218 at 3.
    \53\ Ford, 1995 Notice, #29 at 6. See also Michael W. Gibson, 
1996 Notice, #78 at 1 (a recycled part is a used part placed back in 
service, but rebuilt or remanufactured parts are not referred to as 
``recycled'' in the automotive industry).
    \54\ APRA, 1996 Notice, #102 at 7.
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    Several commenters urged the Commission to allow the application of 
``recycled'' and ``recyclable'' to other remanufactured and reused 
products that are not broken down to raw materials before being reused. 
These commenters noted that reused, reconditioned and remanufactured 
parts are important components of many products, such as office 
copiers, one-time use cameras and mailing machines.<SUP>55</SUP> Kodak 
noted that it has developed a reuse program for its one-time use 
cameras in which it reconditions and reuses, or breaks down into raw 
materials, 86% of a used camera by weight for use in the manufacture of 
new one-time use cameras.<SUP>56</SUP> Kodak contended that because 
collection of this sort of reused material diverts products from the 
waste stream, those products should qualify as 
``recyclable.''<SUP>57</SUP>
---------------------------------------------------------------------------

    \55\ Kodak, 1995 Notice, #42 at 2; 1996 Notice, #95 at 2; Pitney 
Bowes, 1996 Notice, #218 at 4-7.
    \56\ Kodak, 1995 Notice, #42 at 2. Kodak stated that statistics 
show that at least half of all cameras it distributes are returned 
to the company for this recycling. See also Kodak, 1996 Notice, #95 
at 2.
    \57\ Kodak, 1995 Notice, #42 at 2. See also Kodak, 1996 Notice, 
#95 at 2 (noting that other products, such as the so-called ``end of 
life'' office equipment products, are also recovered and converted 
into equivalent salable products).
---------------------------------------------------------------------------

    ARA pointed out that many states, including New Jersey, Missouri, 
Minnesota, Maine, Louisiana, Kentucky, Georgia, and Florida, have 
acknowledged in their statutes that recycling encompasses all efforts, 
including reuse, to remove solid waste from the waste 
stream.<SUP>58</SUP> ARA stated that the Commission should provide 
incentives for all methods of recycling, as long as the goal of 
conserving natural resources and diverting waste is achieved. Other 
commenters noted that the draft ISO standard allows products that are 
diverted from the waste stream and returned to use in the form of raw 
materials or products to be considered ``recyclable,'' and urged the 
Commission to adopt a similar approach.<SUP>59</SUP>
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    \58\ ARA, 1996 Notice, #101 at 8.
    \59\ 3M, 1995 Notice, # 32 at 9; Kodak, 1995 Notice, #42 at 3.
---------------------------------------------------------------------------

    c. Quality Standards for Reused and Remanufactured Parts. The 1996 
Notice asked whether consumers generally perceive that the term 
``recycled'' conveys information about the quality of a product, and 
whether consumers' concerns about product quality differ depending on 
whether a product is made from reconditioned and/or reused parts 
recovered from the solid waste stream versus from materials recovered 
from the solid waste stream and converted into raw materials. The 1996 
Notice also asked if consumer perception about whether a product is or 
is not ``recycled'' would be affected if marketers of products made 
from reconditioned and/or reused parts could prove that those products 
are ``substantially equivalent'' in quality to comparable products made 
from recycled raw materials. The notice further asked what evidence 
should be required to show ``substantial equivalency,'' and if 
consumers are likely to be deceived about the quality of products made 
from reconditioned and/or reused parts if they are advertised as 
``recycled.''
    Several commenters discussed the quality of reused or reconditioned 
products as it relates to recyclability and recycled 
content.<SUP>60</SUP> SPI suggested that substantial quality 
equivalency should be required, and that reliance on applicable 
government or industry standards for such products might be a way to 
demonstrate such equivalency.
---------------------------------------------------------------------------

    \60\ See, e.g., SPI, 1996 Notice, #70 at 3; APRA, 1996 Notice, 
#102 at 3-5.
---------------------------------------------------------------------------

    By contrast, APRA noted that the sections of the guides relating to 
recyclability and recycled content currently do not mention quality and 
stated there is no reason why a product should have to demonstrate a 
particular quality, much less a comparability to new products, before 
being allowed to use the designation ``recycled'' or 
``recyclable.''<SUP>61</SUP> APRA contended that those designations 
describe environmental attributes and not the quality of a product, and 
should not be used to denote quality. APRA noted that quality standards 
for rebuilt and remanufactured motor vehicle parts are already 
reflected in the Commission's Guides for the Rebuilt, Reconditioned and 
Other Used Automotive Parts Industry, 16 CFR Part 20. Kodak suggested 
that any concerns about product quality could be addressed through the 
responsible use of product warranties extended by 
manufacturers.<SUP>62</SUP>
---------------------------------------------------------------------------

    \61\ APRA, 1996 Notice, #102 at 3-5.
    \62\ Kodak, 1996 Notice, #95 at 3.
---------------------------------------------------------------------------

    d. Consumer Perception Data Regarding Reconditioned Products as 
``Recycled''. The 1995 Notice requested empirical evidence addressing 
the issue of whether consumers perceive that products made from 
reconditioned parts that would otherwise have been discarded should 
qualify as ``recycled'' products. In the April 1996 COPE survey, 
consumers were asked whether they considered products made from certain 
materials to be ``recycled.'' Seventy-one percent stated that a 
television set made from reconditioned parts taken from used 
televisions is ``recycled,'' while 25% said the reconditioned 
television set was ``not recycled.'' The Commission believes that these 
results suggest that a large majority of consumers consider 
reconditioning to be a form of ``recycling.''
    e. Expansion of the Recyclable Guide to Include Reused and/or 
Reconditioned Products. The majority of those commenting on the 
Recyclable guide supported its relaxation, and it was pointed out that 
such relaxation would be consistent with the laws of various states. 
Commenters pointed out that because the breakdown of a product into raw 
materials consumes more energy than reuse of that product, reused, 
reconditioned and remanufactured components diverted from the solid 
waste stream are even more beneficial to the environment than diverted 
components that are broken down into raw materials.
    The Commission has therefore expanded the ``recyclable'' definition 
to include any package or product that can be collected, separated or 
otherwise recovered from the solid waste stream for ``reuse,'' or for 
the manufacture or assembly of ``another'' (not necessarily new) 
package or product, so long as the package or product can be collected 
``through an established recycling program.'' The phrase ``through an

[[Page 24247]]

established recycling program'' has been added to the recyclable 
definition to indicate that the expanded definition does not encompass 
all goods with a potential for reuse of any kind. For a product to be 
called ``recyclable,'' there must be an established recycling program, 
municipal or private, through which the product will be converted into, 
or used in, another product or package.
    New Examples 9 and 10 illustrate the expansion of the Recyclable 
guide. Example 9 deals with manufacturers or retailers that collect and 
recycle their own products. The example allows a ``recyclable'' claim, 
even if no municipal recycling program exists, if the manufacturer or 
retailer: (a) sets up a collection and recycling program for that 
product, and (b) explains that the product is recyclable through that 
non-municipal (or private) program. Example 10 indicates that the 
disclosure requirements regarding local availability of municipal 
recycling facilities also apply to non-municipal recycling programs.
    f. Clarification of the Term ``Recycled Content''. The 1996 Notice 
explained that the term ``recycled content'' referred to material that 
a marketer can substantiate has been recovered or otherwise diverted 
from the waste stream. Although this could be interpreted to include 
products made from reconditioned and/or reused parts, as well as 
products made from products converted into raw materials, such as steel 
from melted down cans, the Commission did not endorse this 
interpretation because the Recyclable guide unambiguously stated that 
for something to be ``recyclable'' it must be diverted from the solid 
waste stream and actually reprocessed into raw materials before reuse. 
This has now been changed.
    For the reasons discussed in this section, the Recycled Content 
guide has been clarified to expressly encompass used, reconditioned, 
and remanufactured components, as well as raw materials. The revised 
Recycled Content guide now also states that manufacturers and retailers 
must disclose the nature of the recycled content, unless such content 
consists solely of raw materials, or it would be clear to consumers 
from the context that a product contains used, reconditioned, or 
remanufactured components. The Commission believes that whether the 
product being purchased is new (including a product made from recycled 
raw materials) or is made from used, reconditioned, or remanufactured 
components is a fact material to consumers' purchasing decisions. In 
certain instances, it will be evident to consumers that the product is 
not new (e.g., if the product is purchased from a secondhand store, or 
if the product is an automotive part that has been purchased from an 
automotive dismantler). In those cases, no disclosure of the used 
nature of the product's recycled content would be necessary because it 
is clear from the context of the claim that the recycled content 
consists of used, reconditioned, or remanufactured components. In cases 
where it is not apparent from the context that the product is not new, 
however, to avoid consumer deception, the marketer should disclose the 
used, reconditioned, or remanufactured nature of the product's recycled 
content. Although the prior use of a product might be less important to 
consumers' purchasing decisions where substantial equivalency to a new 
item or an item made from recycled raw materials could be established, 
at the present time the record does not contain evidence that objective 
standards for determining substantial equivalency exist for many 
products. Moreover, in certain cases, there may not even be a 
comparable item made from recycled raw materials.
    New Example 11 illustrates the use of an appropriate qualifier for 
a product that contains both recycled raw materials and reconditioned 
parts. Under that example, the percentage of materials composed of 
reconditioned parts should be disclosed. A consumer could then 
correctly assume that the remaining percentage consists of recycled raw 
materials.
    New Example 12 deals with the use of a ``recycled'' label when it 
would not be clear to a consumer that the product at issue was used. In 
such a case, the product should be labeled to convey to a consumer that 
the product was used in order to avoid consumer deception.
    New Example 13 illustrates the deceptive use of a ``recycled'' 
label when it would not be clear to a consumer that the product at 
issue contains recycled reconditioned parts. Such a label should 
clearly convey that the product contains recycled reconditioned parts 
to avoid deceiving consumers about the nature of that product's 
recycled content.
    New Examples 14 and 15 concern the automotive parts market. As 
discussed above, in the used automotive parts market, consumers 
understand that certain recycled automotive parts are used parts that 
have not undergone any type of repair, rebuilding, or remanufacturing. 
Example 14, which involves a used automotive part, illustrates that in 
such a situation the unqualified use of the word ``recycled'' would not 
be deceptive. Example 15 deals with rebuilt, reconditioned, or 
remanufactured automotive parts that are labeled as ``recycled.'' Some 
commenters pointed out that because reconditioned, rebuilt, and 
remanufactured parts have had restorative work performed on them, some 
dealers may not want to use the ``recycled'' label (as it connotes to 
some consumers that the part is used and has not undergone any 
restoration). The Commission believes that dealers of reconditioned, 
rebuilt, and remanufactured parts should nevertheless be permitted to 
use the ``recycled'' label if they so desire. Example 15 illustrates 
the types of disclosures that are appropriate for use with those parts 
that bear a ``recycled'' label.
4. Additional Amendments to the Recyclable Guide
    a. The Mercury-Containing and Rechargeable Battery Management Act. 
The Mercury-Containing and Rechargeable Battery Management Act of 1996 
(``Battery Act'') establishes uniform national labeling requirements 
regarding rechargeable nickel-cadmium and some lead-acid batteries, to 
aid in battery collection recycling. 42 U.S.C. 14301 et seq. Under the 
Battery Act, rechargeable nickel-cadmium and some lead-acid 
rechargeable batteries must be labeled with the three-chasing-arrows 
symbol or a comparable symbol. Additionally, rechargeable nickel-
cadmium batteries must contain the phrase: ``BATTERY MUST BE RECYCLED 
OR DISPOSED OF PROPERLY.'' 42 U.S.C. 14322(b). Each regulated lead-acid 
battery must contain the words: ``LEAD,'' ``RETURN,'' and ``RECYCLE.'' 
If the regulated battery is sealed, it must contain the phrase: 
``BATTERY MUST BE RECYCLED.'' 42 U.S.C. 14322(b). The Commission 
believes that batteries labeled in accordance with the statute's 
requirements satisfy the guides' disclosure provisions and therefore 
the Recyclable guide now includes a footnote stating that batteries 
labeled in accordance with the Battery Act are deemed to be in 
compliance with the guides.
    b. Example Regarding Use of the SPI Code. Example 2 of the 
Recyclable guide states that the placement of the SPI code in an 
inconspicuous part of a package or product does not constitute a 
recyclability claim. That example has been clarified to emphasize that 
the placement of an SPI code in a conspicuous location may constitute a 
claim of recyclability, and thus, may have to be qualified to disclose 
the

[[Page 24248]]

limited availability of recycling programs for that package or product.
    c. Update of Examples 5 and 6. Examples 5 and 6 have been updated 
by including products that better illustrate the current level of local 
recyclability described in each example.

C. Clarification Regarding Applicability of the Guides to the Marketing 
of Services, and to All Forms of Electronic Advertising

    The Commission has determined to make minor amendments to the 
language in Sections 260.2, 260.5, 260.6(b) and 260.7(a) to clarify 
that the guides apply to the marketing of services because 
environmental claims also are being made in the marketing of services 
and there is no reason to limit the applicability of the guides to only 
products or packages. Furthermore, the Commission has made a minor 
amendment to Section 260.2 to clarify that the guides apply to all 
forms of electronic advertising, including marketing through digital or 
electronic means, such as the Internet or electronic mail.

III. Text of Modified Guides

List of Subjects in 16 CFR Part 260

    Advertising, Environmental claims, Labeling, Trade practices.

    For the reasons set forth in the preamble, 16 CFR Part 260 is 
amended as follows:

PART 260--GUIDES FOR THE USE OF ENVIRONMENTAL MARKETING CLAIMS

    1. The authority citation for Part 260 continues to read as 
follows:

    Authority: 15 U.S.C. 41-58.

    2. Section 260.2 is revised to read as follows:


Sec. 260.2  Scope of guides.

    (a) These guides apply to environmental claims included in 
labeling, advertising, promotional materials and all other forms of 
marketing, whether asserted directly or by implication, through words, 
symbols, emblems, logos, depictions, product brand names, or through 
any other means, including marketing through digital or electronic 
means, such as the Internet or electronic mail. The guides apply to any 
claim about the environmental attributes of a product, package or 
service in connection with the sale, offering for sale, or marketing of 
such product, package or service for personal, family or household use, 
or for commercial, institutional or industrial use.
    (b) Because the guides are not legislative rules under Section 18 
of the FTC Act, they are not themselves enforceable regulations, nor do 
they have the force and effect of law. The guides themselves do not 
preempt regulation of other federal agencies or of state and local 
bodies governing the use of environmental marketing claims. Compliance 
with federal, state or local law and regulations concerning such 
claims, however, will not necessarily preclude Commission law 
enforcement action under Section 5.
    3. Section 260.5 is revised to read as follows:


Sec. 260.5  Interpretation and substantiation of environmental 
marketing claims.

    Section 5 of the FTC Act makes unlawful deceptive acts and 
practices in or affecting commerce. The Commission's criteria for 
determining whether an express or implied claim has been made are 
enunciated in the Commission's Policy Statement on 
Deception.<SUP>1</SUP> In addition, any party making an express or 
implied claim that presents an objective assertion about the 
environmental attribute of a product, package or service must, at the 
time the claim is made, possess and rely upon a reasonable basis 
substantiating the claim. A reasonable basis consists of competent and 
reliable evidence. In the context of environmental marketing claims, 
such substantiation will often require competent and reliable 
scientific evidence, defined as tests, analyses, 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. Further guidance on 
the reasonable basis standard is set forth in the Commission's 1983 
Policy Statement on the Advertising Substantiation Doctrine. 49 FR 
30999 (1984); appended to Thompson Medical Co., 104 F.T.C. 648 (1984). 
The Commission has also taken action in a number of cases involving 
alleged deceptive or unsubstantiated environmental advertising claims. 
A current list of environmental marketing cases and/or copies of 
individual cases can be obtained by calling the FTC Consumer Response 
Center at (202) 326-2222.
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    \1\ Cliffdale Associates, Inc., 103 F.T.C. 110, at 176, 176 n.7, 
n.8, Appendix, reprinting letter dated Oct. 14, 1983, from the 
Commission to The Honorable John D. Dingell, Chairman, Committee on 
Energy and Commerce, U.S. House of Representatives (1984) 
(``Deception Statement'').
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    4. Section 260.6 is amended by revising paragraphs (a) and (b) (the 
examples are unchanged) to read as follows:


Sec. 260.6  General principles.

* * * * *
    (a) Qualifications and disclosures. The Commission traditionally 
has held that in order to be effective, any qualifications or 
disclosures such as those described in these guides should be 
sufficiently clear, prominent and understandable to prevent deception. 
Clarity of language, relative type size and proximity to the claim 
being qualified, and an absence of contrary claims that could undercut 
effectiveness, will maximize the likelihood that the qualifications and 
disclosures are appropriately clear and prominent.
    (b) Distinction between benefits of product, package and service. 
An environmental marketing claim should be presented 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 claim need 
not be qualified to identify that fact. There may be exceptions to this 
general principle. For example, if an unqualified ``recyclable'' claim 
is made and the presence of the incidental component significantly 
limits the ability to recycle the product, then the claim would be 
deceptive.
* * * * *
    5. Footnotes 4, 5 and 6 of Sec. 260.8 are redesignated as footnotes 
7, 8 and 9 and Sec. 260.7 is amended by revising the introductory text, 
paragraph (a) (the examples are unchanged), paragraphs (c) and (d), and 
paragraph (e) and its example 10, and by adding examples 11 through 15 
for paragraph (e), to read as follows:


Sec. 260.7  Environmental marketing claims.

    Guidance about the use of environmental marketing claims is set 
forth in this section. Each guide is followed by several examples that 
illustrate, but do not provide an exhaustive list of, claims that do 
and do not comport with the guides. In each case, the general 
principles set forth in Sec. 260.6 should also be followed.<SUP>2</SUP>
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    \2\ These guides do not currently address claims based on a 
``lifecycle'' theory of environmental benefit. The Commission lacks 
sufficient information on which to base guidance on such claims.

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[[Page 24249]]

    (a) General environmental benefit claims. It is deceptive to 
misrepresent, directly or by implication, that a product, package or 
service offers a general environmental benefit. Unqualified general 
claims of environmental benefit are difficult to interpret, and 
depending on their context, may convey a wide range of meanings to 
consumers. In many cases, such claims may convey that the product, 
package or service has specific and far-reaching environmental 
benefits. As explained in the Commission's Advertising Substantiation 
Statement, every express and material implied claim that the general 
assertion conveys to reasonable consumers about an objective quality, 
feature or attribute of a product or service must be substantiated. 
Unless this substantiation duty can be met, broad environmental claims 
should either be avoided or qualified, as necessary, to prevent 
deception about the specific nature of the environmental benefit being 
asserted.
* * * * *
    (c) Compostable. (1) It is deceptive to misrepresent, directly or 
by implication, that a product or package is compostable. A claim that 
a product or package is compostable should be substantiated by 
competent and reliable scientific evidence that all the materials in 
the product or package will break down into, or otherwise become part 
of, usable compost (e.g., soil-conditioning material, mulch) in a safe 
and timely manner in an appropriate composting program or facility, or 
in a home compost pile or device. Claims of compostability should be 
qualified to the extent necessary to avoid consumer deception. An 
unqualified claim may be deceptive if:
    (i) The package cannot be safely composted in a home compost pile 
or device; or
    (ii) The claim misleads consumers about the environmental benefit 
provided when the product is disposed of in a landfill.
    (2) A claim that a product is compostable in a municipal or 
institutional composting facility may need to be qualified to the 
extent necessary to avoid deception about the limited availability of 
such composting facilities.

    Example 1: A manufacturer indicates that its unbleached coffee 
filter is compostable. The unqualified claim is not deceptive 
provided the manufacturer can substantiate that the filter can be 
converted safely to usable compost in a timely manner in a home 
compost pile or device. If this is the case, it is not relevant that 
no local municipal or institutional composting facilities exist.
    Example 2: A lawn and leaf bag is labeled as ``Compostable in 
California Municipal Yard Trimmings Composting Facilities.'' The bag 
contains toxic ingredients that are released into the compost 
material as the bag breaks down. The claim is deceptive if the 
presence of these toxic ingredients prevents the compost from being 
usable.
    Example 3: A manufacturer makes an unqualified claim that its 
package is compostable. Although municipal or institutional 
composting facilities exist where the product is sold, the package 
will not break down into usable compost in a home compost pile or 
device. To avoid deception, the manufacturer should disclose that 
the package is not suitable for home composting.
    Example 4: A nationally marketed lawn and leaf bag is labeled 
``compostable.'' Also printed on the bag is a disclosure that the 
bag is not designed for use in home compost piles. The bags are in 
fact composted in yard trimmings composting programs in many 
communities around the country, but such programs are not available 
to a substantial majority of consumers or communities where the bag 
is sold. The claim is deceptive because reasonable consumers living 
in areas not served by yard trimmings programs may understand the 
reference to mean that composting facilities accepting the bags are 
available in their area. To avoid deception, the claim should be 
qualified to indicate the limited availability of such programs, for 
example, by stating, ``Appropriate facilities may not exist in your 
area.'' Other examples of adequate qualification of the claim 
include providing the approximate percentage of communities or the 
population for which such programs are available.
    Example 5: A manufacturer sells a disposable diaper that bears 
the legend, ``This diaper can be composted where solid waste 
composting facilities exist. There are currently [X number of] solid 
waste composting facilities across the country.'' The claim is not 
deceptive, assuming that composting facilities are available as 
claimed and the manufacturer can substantiate that the diaper can be 
converted safely to usable compost in solid waste composting 
facilities.
    Example 6: A manufacturer markets yard trimmings bags only to 
consumers residing in particular geographic areas served by county 
yard trimmings composting programs. The bags meet specifications for 
these programs and are labeled, ``Compostable Yard Trimmings Bag for 
County Composting Programs.'' The claim is not deceptive. Because 
the bags are compostable where they are sold, no qualification is 
required to indicate the limited availability of composting 
facilities.

    (d) Recyclable. It is deceptive to misrepresent, directly or by 
implication, that a product or package is recyclable. A product or 
package should not be marketed as recyclable unless it can be 
collected, separated or otherwise recovered from the solid waste stream 
for reuse, or in the manufacture or assembly of another package or 
product, through an established recycling program. Unqualified claims 
of recyclability for a product or package may be made if the entire 
product or package, excluding minor incidental components, is 
recyclable. For products or packages that are made of both recyclable 
and non-recyclable components, the recyclable claim should be 
adequately qualified to avoid consumer deception about which portions 
or components of the product or package are recyclable. Claims of 
recyclability should be qualified to the extent necessary to avoid 
consumer deception about any limited availability of recycling programs 
and collection sites. If an incidental component significantly limits 
the ability to recycle a product or package, a claim of recyclability 
would be deceptive. A product or package that is made from recyclable 
material, but, because of its shape, size or some other attribute, is 
not accepted in recycling programs for such material, should not be 
marketed as recyclable.<SUP>4</SUP>

    \4\ The Mercury-Containing and Rechargeable Battery Management 
Act establishes uniform national labeling requirements regarding 
certain types of nickel-cadmium rechargeable and small lead-acid 
rechargeable batteries to aid in battery collection and recycling. 
The Battery Act requires, in general, that the batteries must be 
labeled with the three-chasing-arrows symbol or a comparable 
recycling symbol, and the statement ``Battery Must Be Recycled Or 
Disposed Of Properly.'' 42 U.S.C. 14322(b). Batteries labeled in 
accordance with this federal statute are deemed to be in compliance 
with these guides.
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    Example 1: A packaged product is labeled with an unqualified 
claim, ``recyclable.'' It is unclear from the type of product and 
other context whether the claim refers to the product or its 
package. The unqualified claim is likely to convey to reasonable 
consumers that all of both the product and its packaging that remain 
after normal use of the product, except for minor, incidental 
components, can be recycled. Unless each such message can be 
substantiated, the claim should be qualified to indicate what 
portions are recyclable.
    Example 2: A nationally marketed 8 oz. plastic cottage-cheese 
container displays the Society of the Plastics Industry (SPI) code 
(which consists of a design of arrows in a triangular shape 
containing a number and abbreviation identifying the component 
plastic resin) on the front label of the container, in close 
proximity to the product name and logo. The manufacturer's 
conspicuous use of the SPI code in this manner constitutes a 
recyclability claim. Unless recycling facilities for this container 
are available to a substantial majority of consumers or communities, 
the claim should be qualified to disclose the limited availability 
of recycling programs for the container. If the SPI code, without 
more, had been placed in an inconspicuous location on the container 
(e.g., embedded in the bottom of the container) it would not 
constitute a claim of recyclability.
    Example 3: A container can be burned in incinerator facilities 
to produce heat and power. It cannot, however, be recycled into

[[Page 24250]]

another product or package. Any claim that the container is 
recyclable would be deceptive.
    Example 4: A nationally marketed bottle bears the unqualified 
statement that it is ``recyclable.'' Collection sites for recycling 
the material in question are not available to a substantial majority 
of consumers or communities, although collection sites are 
established in a significant percentage of communities or available 
to a significant percentage of the population. The unqualified claim 
is deceptive because, unless evidence shows otherwise, reasonable 
consumers living in communities not served by programs may conclude 
that recycling programs for the material are available in their 
area. To avoid deception, the claim should be qualified to indicate 
the limited availability of programs, for example, by stating ``This 
bottle may not be recyclable in your area,'' or ``Recycling programs 
for this bottle may not exist in your area.'' Other examples of 
adequate qualifications of the claim include providing the 
approximate percentage of communities or the population to whom 
programs are available.
    Example 5: A paperboard package is marketed nationally and 
labeled, ``Recyclable where facilities exist.'' Recycling programs 
for this package are available in a significant percentage of 
communities or to a significant percentage of the population, but 
are not available to a substantial majority of consumers. The claim 
is deceptive because, unless evidence shows otherwise, reasonable 
consumers living in communities not served by programs that recycle 
paperboard packaging may understand this phrase to mean that such 
programs are available in their area. To avoid deception, the claim 
should be further qualified to indicate the limited availability of 
programs, for example, by using any of the approaches set forth in 
Example 4 above.
    Example 6: A foam polystyrene cup is marketed as follows: 
``Recyclable in the few communities with facilities for foam 
polystyrene cups.'' Collection sites for recycling the cup have been 
established in a half-dozen major metropolitan areas. This 
disclosure illustrates one approach to qualifying a claim adequately 
to prevent deception about the limited availability of recycling 
programs where collection facilities are not established in a 
significant percentage of communities or available to a significant 
percentage of the population. Other examples of adequate 
qualification of the claim include providing the number of 
communities with programs, or the percentage of communities or the 
population to which programs are available.
    Example 7: A label claims that the package ``includes some 
recyclable material.'' The package is composed of four layers of 
different materials, bonded together. One of the layers is made from 
the recyclable material, but the others are not. While programs for 
recycling this type of material are available to a substantial 
majority of consumers, only a few of those programs have the 
capability to separate the recyclable layer from the non-recyclable 
layers. Even though it is technologically possible to separate the 
layers, the claim is not adequately qualified to avoid consumer 
deception. An appropriately qualified claim would be, ``includes 
material recyclable in the few communities that collect multi-layer 
products.'' Other examples of adequate qualification of the claim 
include providing the number of communities with programs, or the 
percentage of communities or the population to which programs are 
available.
    Example 8: A product is marketed as having a ``recyclable'' 
container. The product is distributed and advertised only in 
Missouri. Collection sites for recycling the container are available 
to a substantial majority of Missouri residents, but are not yet 
available nationally. Because programs are generally available where 
the product is marketed, the unqualified claim does not deceive 
consumers about the limited availability of recycling programs.
    Example 9: A manufacturer of one-time use photographic cameras, 
with dealers in a substantial majority of communities, collects 
those cameras through all of its dealers. After the exposed film is 
removed for processing, the manufacturer reconditions the cameras 
for resale and labels them as follows: ``Recyclable through our 
dealership network.'' This claim is not deceptive, even though the 
cameras are not recyclable through conventional curbside or drop off 
recycling programs.
    Example 10: A manufacturer of toner cartridges for laser 
printers has established a recycling program to recover its 
cartridges exclusively through its nationwide dealership network. 
The company advertises its cartridges nationally as ``Recyclable. 
Contact your local dealer for details.'' The company's dealers 
participating in the recovery program are located in a significant 
number--but not a substantial majority--of communities. The 
``recyclable'' claim is deceptive unless it contains one of the 
qualifiers set forth in Example 4. If participating dealers are 
located in only a few communities, the claim should be qualified as 
indicated in Example 6.
    Example 11: An aluminum beverage can bears the statement 
``Please Recycle.'' This statement is likely to convey to consumers 
that the package is recyclable. Because collection sites for 
recycling aluminum beverage cans are available to a substantial 
majority of consumers or communities, the claim does not need to be 
qualified to indicate the limited availability of recycling 
programs.

    (e) Recycled content. (1) A recycled content claim may be made only 
for materials that have been recovered or otherwise diverted from the 
solid waste stream, either during the manufacturing process (pre-
consumer), or after consumer use (post-consumer). To the extent the 
source of recycled content includes pre-consumer material, the 
manufacturer or advertiser must have substantiation for concluding that 
the pre-consumer material would otherwise have entered the solid waste 
stream. In asserting a recycled content claim, distinctions may be made 
between pre-consumer and post-consumer materials. Where such 
distinctions are asserted, any express or implied claim about the 
specific pre-consumer or post-consumer content of a product or package 
must be substantiated.
    (2) It is deceptive to misrepresent, directly or by implication, 
that a product or package is made of recycled material, which includes 
recycled raw material, as well as used,<SUP>5</SUP> reconditioned and 
remanufactured components. Unqualified claims of recycled content may 
be made if the entire product or package, excluding minor, incidental 
components, is made from recycled material. For products or packages 
that are only partially made of recycled material, a recycled claim 
should be adequately qualified to avoid consumer deception about the 
amount, by weight, of recycled content in the finished product or 
package. Additionally, for products that contain used, reconditioned or 
remanufactured components, a recycled claim should be adequately 
qualified to avoid consumer deception about the nature of such 
components. No such qualification would be necessary in cases where it 
would be clear to consumers from the context that a product's recycled 
content consists of used, reconditioned or remanufactured components.
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    \5\ The term ``used'' refers to parts that are not new and that 
have not undergone any type of remanufacturing and/or 
reconditioning.
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* * * * *
    Example 10: A packaged food product is labeled with a three-
chasing-arrows symbol without any further explanatory text as to its 
meaning. By itself, the symbol is likely to convey that the 
packaging is both ``recyclable'' and is made entirely from recycled 
material. Unless both messages can be substantiated, the claim 
should be qualified as to whether it refers to the package's 
recyclability and/or its recycled content. If a ``recyclable'' claim 
is being made, the label may need to disclose the limited 
availability of recycling programs for the package. If a recycled 
content claim is being made and the packaging is not made entirely 
from recycled material, the label should disclose the percentage of 
recycled content.
    Example 11: A laser printer toner cartridge containing 25% 
recycled raw materials and 40% reconditioned parts is labeled ``65% 
recycled content; 40% from reconditioned parts.'' This claim is not 
deceptive.
    Example 12: A store sells both new and used sporting goods. One 
of the items for sale in the store is a baseball helmet that, 
although used, is no different in appearance than a brand new item. 
The helmet bears an unqualified ``Recycled'' label. This claim is 
deceptive because, unless evidence shows otherwise, consumers could 
reasonably believe that the helmet is made of recycled raw 
materials, when it is in fact a used item. An acceptable claim would 
bear a disclosure clearly stating that the helmet is used.

[[Page 24251]]

    Example 13: A manufacturer of home electronics labels its video 
cassette recorders (``VCRs'') as ``40% recycled.'' In fact, each VCR 
contains 40% reconditioned parts. This claim is deceptive because 
consumers are unlikely to know that the VCR's recycled content 
consists of reconditioned parts.
    Example 14: A dealer of used automotive parts recovers a 
serviceable engine from a vehicle that has been totaled. Without 
repairing, rebuilding, remanufacturing, or in any way altering the 
engine or its components, the dealer attaches a ``Recycled'' label 
to the engine, and offers it for resale in its used auto parts 
store. In this situation, an unqualified recycled content claim is 
not likely to be deceptive because consumers are likely to 
understand that the engine is used and has not undergone any 
rebuilding.
    Example 15: An automobile parts dealer purchases a transmission 
that has been recovered from a junked vehicle. Eighty-five percent 
by weight of the transmission was rebuilt and 15% constitutes new 
materials. After rebuilding <SUP>6</SUP> the transmission in 
accordance with industry practices, the dealer packages it for 
resale in a box labeled ``Rebuilt Transmission,'' or ``Rebuilt 
Transmission (85% recycled content from rebuilt parts),'' or 
``Recycled Transmission (85% recycled content from rebuilt parts).'' 
These claims are not likely to be deceptive.
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    \6\ The term ``rebuilding'' means that the dealer dismantled and 
reconstructed the transmission as necessary, cleaned all of its 
internal and external parts and eliminated rust and corrosion, 
restored all impaired, defective or substantially worn parts to a 
sound condition (or replaced them if necessary), and performed any 
operations required to put the transmission in sound working 
condition.
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* * * * *
    6. Section 260.8 is revised to read as follows:


Sec. 260.8  Environmental assessment.

    (a) National Environmental Policy Act. In accordance with section 
1.83 of the FTC's Procedures and Rules of Practice <SUP>7</SUP> and 
section 1501.3 of the Council on Environmental Quality's regulations 
for implementing the procedural provisions of National Environmental 
Policy Act, 42 U.S.C. 4321 et seq. (1969), <SUP>8</SUP> the Commission 
prepared an environmental assessment when the guides were issued in 
July 1992 for purposes of providing sufficient evidence and analysis to 
determine whether issuing the Guides for the Use of Environmental 
Marketing Claims required preparation of an environmental impact 
statement or a finding of no significant impact. After careful study, 
the Commission concluded that issuance of the Guides would not have a 
significant impact on the environment and that any such impact ``would 
be so uncertain that environmental analysis would be based on 
speculation.'' <SUP>9</SUP> The Commission concluded that an 
environmental impact statement was therefore not required. The 
Commission based its conclusions on the findings in the environmental 
assessment that issuance of the guides would have no quantifiable 
environmental impact because the guides are voluntary in nature, do not 
preempt inconsistent state laws, are based on the FTC's deception 
policy, and, when used in conjunction with the Commission's policy of 
case-by-case enforcement, are intended to aid compliance with section 
5(a) of the FTC Act as that Act applies to environmental marketing 
claims.
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    \7\ 16 CFR 1.83.
    \8\ 40 CFR 1501.3.
    \9\ 16 CFR 1.83(a).
---------------------------------------------------------------------------

    (b) The Commission has concluded that the modifications to the 
guides in this part will not have a significant effect on the 
environment, for the same reasons that the issuance of the original 
guides in 1992 and the modifications to the guides in 1996 were deemed 
not to have a significant effect on the environment. Therefore, the 
Commission concludes that an environmental impact statement is not 
required in conjunction with the issuance of the 1998 modifications to 
the Guides for the Use of Environmental Marketing Claims.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 98-11455 Filed 4-30-98; 8:45 am]
BILLING CODE 6750-01-P