24240 Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations

1The 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 publicprivate recycling coalition.

2The 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.

FEDERAL TRADE COMMISSION

16 CFR Part 260

Guides for the Use of Environmental

Marketing Claims

AGENCY: Federal Trade Commission.

ACTION: Final revised guides.

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 workshopconference 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.1 Some of those comments are

relevant to the issues presented in the

October 11, 1996 Federal Register

Notice (‘‘1996 Notice’’), discussed

below.2

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
Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations 24241

3For 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.

4These 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.

5Although 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.

6SPI, 1995 Notice, #53 at 25; 1996 Notice, #70 at

2.

7Mobil 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.

8This 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 openended 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.’’

9The word ‘‘institutional’’ has been added

because there are also privately operated

composting facilities.

10Example 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.

11 International Dairy Foods Ass’n (‘‘IDFA’’), 1995

Notice, #13 at 2–3; American Bakers Ass’n, 1995

Continued

perception data for ‘‘recyclable’’ and

‘‘compostable’’ claims.3

In response to the 1996 Notice, 227

comments were received.4 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.

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.5

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.6 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.’’ 7

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.8 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 9 composting

facilities are not locally available.10 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.

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.11 Most of the
24242 Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations

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.

14Soap 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).

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.

18Helene Curtis, Inc., 1995 Notice #8 at 3;

National Recycling Coalition Inc., 1995 Notice, #73

at 1.

19EPA, 1995 Notice, #22 at 2, 5; 1996 Notice, #215

at 1–2.

20Aluminum Ass’n, Inc., 1995 Notice, #66 at 3–

5.

21Ass’n of Recycling Managers, Inc., 1995 Notice,

#77 at 2, 5.

22Californians Against Waste Foundation, 1995

Notice, #81 ατ 3.

23EDF, 1995 Notice, #93 at 4.

24Professors Robert N. Mayer and Brenda J. Cude

(‘‘Mayer & Cude’’), 1995 Notice, #20 at 3.

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.

26NSDA, 1995 Notice, #62 at 6.

27EPA, 1995 Notice, #22 at 2.

28Mayer & Cude, 1995 Notice, #20 at 5.

29Attorneys General of the States of Arizona,

California, Connecticut, Florida, Massachusetts,

Minnesota, Missouri, New York, Pennsylvania,

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.12 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.13 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.14

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).15 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.16 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.17

In contrast, several commenters urged

the Commission to retain the current

recyclable qualifications.18 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.19 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.

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.20 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 nonrecyclables.21 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.

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.22 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.23 Two university professors

who conducted research on recycling

claims also suggested stronger

qualifications.24

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.25 NSDA explained that in

the soft drink industry, the threechasing-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.26

In contrast, EPA stated that it viewed

‘‘Please Recycle’’ as similar to an

unqualified claim of recyclability.27 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.28 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.29
Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations 24243

Tennessee, Washington, and Wisconsin (‘‘Attorneys

General’’), 1995 Notice, #45 at 3.

30The 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.

31This 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.’’

32The 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.

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 mallintercept 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.30 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.

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.31 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.

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.32

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 threetiered 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,
24244 Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations

33Foodservice & 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).

34Washington 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.

36American 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).

37Ford, 1995 Comment, #29 at 4–5.

38Hotline, 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.

39California Integrated Waste Management Board,

1995 Notice, #74 at 2.

40Attorneys General, 1995 Notice, #45 at 4.

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.33 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.34

Commenters also favored claims such as

‘‘recyclable through participating

photofinishers’’ and ‘‘recyclable through

participating dealers.’’ 35 Another

commenter urged the Commission to

streamline the lengthy qualifications for

‘‘recyclable’’ claims offered as examples

in the guides.36

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.37 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.

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.38 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.39

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.40 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.’’

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
Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations 24245

41The new qualifications also are consistent with

the one suggested in the Compostable guide:

‘‘Appropriate facilities may not exist in your area.’’

42Attached 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.

43See, 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).

44BIG Truck Salvage, Inc., 1996 Notice, #77 at 1.

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%).

46See, 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.

47Route 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.

49ARA, 1996 Notice, #101 at 8.

50ARA, 1995 Notice, #71 at 2, 6. See also ARA,

1996 Notice, #101 at 1–9.

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.’’ 41 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.

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.42 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’’ 43 and one stated

that ‘‘recycled’’ was the automotive

industry’s term first, before everyone

else ‘‘jumped on the environmental

bandwagon.’’ 44

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.45 Other commenters

said recycled parts give consumers an

alternative repair option and help

reduce the unnecessary production of

new parts.46 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.47

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.48 That

commenter also pointed out that the

automotive dismantler may be the only

source of parts for the consumer who

owns an older vehicle.

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.49

ARA therefore recommended revising

the Recyclable guide to incorporate

reused automotive components as a

qualifying use for the term

‘‘recyclable.’’ 50 ARA further suggested

that reused automotive parts should be

included in the guidance regarding the

Recycled Content guide.

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
24246 Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations

51PRC, 1996 Notice, #100 at 1–2.

52Pitney Bowes, 1996 Notice, #218 at 3.

53Ford, 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).

54APRA, 1996 Notice, #102 at 7.

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).

58ARA, 1996 Notice, #101 at 8.

59 3M, 1995 Notice, # 32 at 9; Kodak, 1995 Notice,

#42 at 3.

60See, e.g., SPI, 1996 Notice, #70 at 3; APRA,

1996 Notice, #102 at 3–5.

61APRA, 1996 Notice, #102 at 3–5.

62 Kodak, 1996 Notice, #95 at 3.

materials.51 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.52 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.53

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.54

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, onetime use cameras and mailing

machines.55 Kodak noted that it has

developed a reuse program for its onetime 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.56 Kodak contended that

because collection of this sort of reused

material diverts products from the waste

stream, those products should qualify as

‘‘recyclable.’’57

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.58 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.59

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.60 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.

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.’’61 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.62

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
Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations 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 nonmunicipal (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 nickelcadmium 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
24248 Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations

1Cliffdale 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’’).

2These 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.

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:

§ 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:

§ 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.1 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.

4. Section 260.6 is amended by

revising paragraphs (a) and (b) (the

examples are unchanged) to read as

follows:

§ 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 § 260.8 are

redesignated as footnotes 7, 8 and 9 and

§ 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:

§ 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

§ 260.6 should also be followed.2
Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations 24249

4The 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.

(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.4

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
24250 Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations

5The term ‘‘used’’ refers to parts that are not new

and that have not undergone any type of

remanufacturing and/or reconditioning.

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 preconsumer 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,5 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.

* * * * *

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.
Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations 24251

6The 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.

7 16 CFR 1.83.

8 40 CFR 1501.3.

9 16 CFR 1.83(a).

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 6 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.

* * * * *

6. Section 260.8 is revised to read as

follows:

§ 260.8 Environmental assessment.

(a) National Environmental Policy

Act. In accordance with section 1.83 of

the FTC’s Procedures and Rules of

Practice 7 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), 8 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.’’ 9 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.

(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