BILL ANALYSIS �
AB 837
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2011-2012 Regular Session
BILL NO: AB 837
AUTHOR: Nestande
AMENDED: June 20, 2011
FISCAL: Yes HEARING DATE: June 27, 2011
URGENCY: No CONSULTANT: Randy Pestor
SUBJECT : FOOD CONTAINER ADVERTISING
SUMMARY :
Existing law :
1) 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).
2) 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
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.
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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.
3) Prohibits a food or beverage container from being sold that
is labeled "compostable" or "marine biodegradable" unless
the food or beverage container meets certain ASTM
standards, and prohibits a food or beverage container from
being sold that is labeled with the term "biodegradable,"
"degradable," or "decomposable," or any form of those
terms. Certain related provisions, including definitions
and penalties, are specified. (�42359 et seq.).
This bill enacts the Food Container Recycled Content Law that:
1) Prohibits a manufacturer or supplier from selling a plastic
food container in California that is advertised with a
specific recycled content amount unless the manufacturer or
supplier is able to provide certification of that claim in
a format that is easy to understand and accurate.
2) Requires a manufacturer or supplier to submit information
and documentation demonstrating compliance with the above
requirement within 90 days of the request. A manufacturer
or supplier is in compliance with the Law if a link to a
document on its Internet Web site contains the required
certification and documentation.
3) Sets penalties that may only be imposed by the state with
penalties paid to the Attorney General.
4) Provides related definitions and legislative intent.
COMMENTS :
1) Purpose of Bill . According to the author, "Existing law
establishes certain requirements for plastic products that
are labeled as compostable or marine degradable. Those
products must meet the specifications established by ASTM
Standards. There are no similar requirements for recycled
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content claims for plastic packaging. This bill is not
intended to establish certification requirements for
recycled content claims, but merely requires those
manufacturers or suppliers to be able to back up their
claims upon request from a member of the public or state
agency.
The author further notes that "Misleading claims are already
actionable under B&P section 17200 and the Federal Trade
Commission has established green guides regarding recycled
content claims. This bill fills the gap by requiring
demonstration/validation of the claim and establishes
penalties for failure to comply. While much more prolific
in Europe, there are several entities in the U.S. who have
processes to certify or verify recycled content claims,
like UL Environment and Scientific Certification Systems."
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
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
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with the Guides, the FTC can take action under Section 5 of
the FTC Act, which prohibits unfair or deceptive
practices."
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 (Business and Professions Code �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 Guide contains 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).
Since federal and state law already address untruthful,
deceptive, or misleading environmental marketing claims for
consumer goods, the AB 837 food container provisions
conflict with those laws. However, it may be appropriate
to simply require any person making an environmental claim
regarding recycled content under the state's Environmental
Representations Law 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
should not be construed as a limitation on other
requirements, and this information should be furnished to
any member of the public upon request or provided by a link
on an Internet Web site.
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3) Support and opposition concerns . According to supporters,
"AB 837 promotes truth in advertising by preventing
'greenwashing' of products with claims of recycled content.
Currently there are no standards for recycled content of
plastic packaging. Consumers value products with an
environmental benefit and expect product claims to be
substantiated. AB 837 provides the assurance consumers
need by requiring manufacturers or suppliers to be able to
back up their claims upon request from a member of the
public or state agency."
According to opponents, "We support efforts to ensure that
advertised environmental claims can be properly justified
and that producers are not misrepresenting the
environmental virtues of their product in order to obtain
market advantage. However, we believe this is a solution
in search of a problem because there has been no factual
demonstration that manufacturers or suppliers have been
advertising inappropriate recycled content claims for their
packages." Opponents also note that existing federal and
state "enforcement tools work."
SOURCE : Assemblymember Nestande
SUPPORT : Environment California
OPPOSITION : American Chemistry Council, California Bottled
Water Association, 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