BILL ANALYSIS Ó
AB 837
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2011-2012 Regular Session
BILL NO: AB 837
AUTHOR: Nestande
AMENDED: June 7, 2012
FISCAL: Yes HEARING DATE: June 18, 2012
URGENCY: No CONSULTANT: Randy Pestor
SUBJECT : FOOD CONTAINER MARKETING CLAIMS
SUMMARY :
Existing law :
1) Under the Biodegradable and Compostable Plastic Bags Law
(Public Resources Code §42355 et seq.) and Plastic Food and
Beverage Containers Law (§42359 et seq.), prohibits
products from being sold that are labeled "compostable" or
"marine biodegradable" unless they meet certain American
Society for Testing and Materials (ASTM) standards.
Certain related provisions, including definitions and
penalties, are specified. These provisions sunset January
1, 2013, and on that date the Plastic Products Law (§42355
et seq.) becomes effective and similar provisions apply to
various plastic products.
2) Authorizes any person who engages, has engaged, or proposes
to engage in unfair competition to be enjoined in any court
of competent jurisdiction. (Business and Professions Code
§17203). Actions for any relief may be by a person who has
"suffered injury in fact and has lost money or property as
a result of the unfair competition." (§17204).
3) Under provisions relating to Environmental Representations
Law (§17580 et seq.):
a) Requires any person who represents in advertising or
on a label that the consumer good it manufactures or
distributes is not harmful to, or is beneficial to, the
natural environment through the use of certain terms
(e.g., "ecologically friendly," "earth friendly," "green
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product,") or any like term, to maintain in written form
certain information and documentation supporting the
validity of the representation. This information and
documentation must be furnished to the public upon
request.
b) Prohibits any person from making any untruthful,
deceptive, or misleading environmental marketing claim.
For purposes of this provision, "environmental marketing
claim" must include any claim contained in the "Guides
for the Use of Environmental Marketing Claims" published
by the Federal Trade Commission.
c) Provides that any violation of the above requirements
is a misdemeanor punishable by imprisonment in the
county jail not to exceed 6 months, or by a fine of no
more than $2,500, or both.
This bill adds requirements to the Plastic Products Law
relating to plastic food container products that:
1) Require any manufacturer or supplier making an
environmental marketing claim relating to recycled content
of a plastic food container product to maintain information
and documentation in written form in its records supporting
the claim that:
a) The recycled content for materials has been recovered
or otherwise diverted from the solid waste stream either
during the manufacturing process (preconsumer) or after
consumer use (postconsumer).
b) The recycled content claim conforms with the uniform
standards for recycled content contained in the Federal
Trade Commission Guides for the Use of Environmental
Marketing Claims.
2) Require the above information and documentation to be
furnished to the public upon request or provided by
furnishing a link to a document on its Internet Web site
containing the information and documentation.
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3) Define "plastic food container product" to be a product
made of plastic that includes a tray, clamshell container,
or other receptacle that is used, or intended to be used,
to hold food.
4) Provide that the above requirements do not limit
requirements under the Plastic Products Law or any other
provision of law.
5) Sunset January 1, 2018.
COMMENTS :
1) Purpose of Bill . According to the author, "AB 837 simply
promotes truth in advertising, i.e. stops the practice of
'greenwashing.' Consumers value products with an
environmental benefit and many environmental claims go
unchallenged. This measure ensures a product marketed with
a certain recycled content claim is accurate by holding
manufacturers and suppliers accountable for the claim."
2) Current law addresses false or unsubstantiated
environmental claims . Under federal law, unfair methods of
competition in or affecting commerce, and unfair or
deceptive acts or practices in or affecting commerce, are
unlawful. (15 U.S.C. §45). The Federal Trade Commission
(FTC) issues "Guides for the Use of Environmental Marketing
Claims" (also referred to as the "Green Guides"). These
Guides outline general principles that apply to all
environmental marketing claims and provide guidance on
specific green claims, including provisions relating to
"recycled content" (16 CFR 260.7(d)). According to the
FTC, "The Commission has brought law enforcement actions
targeting allegedly false or unsubstantiated environmental
claims. Because the Green Guides are administrative
interpretations of the law, they do not have the force and
effect of law and they are not independently enforceable.
However, if a marketer makes claims that are inconsistent
with the Guides, the FTC can take action under Section 5 of
the FTC Act, which prohibits unfair or deceptive
practices."
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Current law authorizes any person who engages, has engaged, or
proposes to engage in unfair competition to be enjoined in
any court of competent jurisdiction (Business and
Professions Code §17203). Also, under Environmental
Representations Law, any person is prohibited from making
any untruthful, deceptive, or misleading environmental
marketing claim. (§17580.5). For purposes of this
provision, "environmental marketing claim" must include any
claim contained in the "Guides for the Use of Environmental
Marketing Claims" published by the FTC. As noted above,
the Guides contain provisions relating to recycled content.
Also, any person who represents in advertising or on a
label that the consumer good it manufactures or distributes
is not harmful to, or is beneficial to, the natural
environment through the use of certain terms (e.g.,
"ecologically friendly," "earth friendly," "green product")
or any like term, must maintain in written form certain
information and documentation supporting the validity of
the representation. This information and documentation
must be furnished to the public upon request. (§17580).
The previous version of AB 837 conflicted with federal and
state law that already address untruthful, deceptive, or
misleading environmental marketing claims for consumer
goods. AB 837 was amended June 7, 2012, to avoid this
conflict by requiring any manufacturer or supplier making
an environmental claim regarding recycled content of a
plastic food container to maintain information supporting
the claim that: a) the recycled content has been diverted
from the solid waste stream, and b) the claim conforms with
the uniform standards for recycled content from FTC's
"Guides for the Use of Environmental Marketing Claims."
This information must be furnished to any member of the
public upon request or provided by a link on an Internet
Web site. Also, this provision does not limit requirements
under the Plastic Products Law or other provisions of law,
and sunsets January 1, 2018, to enable the Legislature to
evaluate the bill's effectiveness.
SOURCE : Assemblymember Nestande
SUPPORT : Californians Against Waste
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OPPOSITION : American Chemistry Council, California Chamber
of Commerce, California Grocers Association,
California League of Food Processors,
California Manufacturers and Technology
Association, California Retailers Association,
Grocery Manufacturers Association,
International Bottled Water Association