BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 837|
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THIRD READING
Bill No: AB 837
Author: Nestande (R)
Amended: 6/7/12 in Senate
Vote: 21
SENATE ENVIRONMENTAL QUALITY COMMITTEE : 5-0, 6/18/12
AYES: Simitian, Hancock, Kehoe, Lowenthal, Pavley
NO VOTE RECORDED: Strickland, Blakeslee
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : Not relevant
SUBJECT : Solid waste: plastic products
SOURCE : Author
DIGEST : This bill requires a manufacturer or supplier
making an environmental marketing claim relating to the
recycled content of a plastic food container product, as
defined, to maintain certain information and documentation
in support of that claim. This bill requires a
manufacturer or supplier to furnish this information to any
member of the public upon request or to provide the
information and documentation by furnishing a link to a
document on its Internet Web site. This bill repeals these
requirements on January 1, 2018.
ANALYSIS :
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Existing law:
1. Under the Biodegradable and Compostable Plastic Bags Law
and Plastic Food and Beverage Containers Law (Plastic
Product Law), prohibits products from being sold that
are labeled "compostable" or "marine biodegradable"
unless they meet certain American Society for Testing
and Materials standards. Certain related provisions,
including definitions and penalties, are specified.
These provisions sunset January 1, 2013, and on that
date the Plastic Products Law 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. 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."
3. Under provisions relating to the Environmental
Representations Law:
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
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 (FTC).
C. Provides that any violation of the above
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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 FTC 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.
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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
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SUPPORT : (Verified 7/2/12)
Californians Against Waste
California League of Conservation Voters (if amended)
Environment California
Green California
Green Money and Conservation League
OPPOSITION : (Verified 7/2/12)
American Chemistry Council
California Chamber of Commerce
California Grocers Association
California League of Food Processors
California Manufacturers and Technology Association
California Nevada Soft Drink Association
California Retailers Association
Grocery Manufacturers Association
International Bottled Water Association
ARGUMENTS IN SUPPORT : 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."
Existing 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. 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." 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
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can take action under Section 5 of the FTC Act, which
prohibits unfair or deceptive practices." Existing law
authorizes any person who engages, has engaged, or proposes
to engage in unfair competition to be enjoined in any court
of competent jurisdiction. Also, under Environmental
Representations Law, any person is prohibited 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 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.
The previous version of this bill conflicted with federal
and state law that already address untruthful, deceptive,
or misleading environmental marketing claims for consumer
goods. This bill 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.
ARGUMENTS IN OPPOSITION : The opposition opposes this
bill because it is unnecessary, authorizes a patchwork
system of enforcement, imposes another competitive
disadvantage upon California businesses, and creates a
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disincentive for using recycled materials. They believe it
lacks due process of law and they believe a uniform
material standard by FTC is more appropriate than this
bill.
DLW:d 7/3/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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