Archive for the ‘FTC’ Category

Green Guides Give Guidance

Earlier this month, the Federal Trade Commission issued a freshly revised version of its “Green Guides” (a.k.a U.S.C. Sec. 260) for use by marketers everywhere. The Green Guides help ensure that marketing claims regarding the green or environmentally-related attributes of a product are honest and not deceptive. The Guides were first introduced in 1992, with subsequent revisions in 1996 and 1998. The new revisions include expansion and updates of existing sections as well as the addition of new sections on certifications, non-toxic claims, carbon offsets and more. These changes include content addressing the 340 public comments that were filed when this proposed Guides revision was released in a preliminary form in 2010. While the Guiides are not rules or regulations, and do not cover every possible scenario, they are a useful guidance resource to avoid making deceptive claims.

Revising FERC’s Horizontal Merger Policies

Photo by Aidan Jones. Some rights reserved.

Law firm memos are abuzz with information on FERC’s recent Notice of Inquiry (NOI), which requests comments on whether – and how – to revise their approach to examining horizontal market power concerns.

The question of revision was sparked by last year’s Horizontal Merger Guidelines – a document issued jointly by the FTC and DOJ that set forth how those two agencies in particular will evaluate the impact of horizontal mergers on competition in various markets. The guidelines flesh out in what ways the agencies can “identify and challenge competitively harmful mergers while avoiding unnecessary interference with mergers that are either competitively beneficial or neutral.”

FERC has a similar directive – pursuant to Section 203(a)(4) of the Federal Power Act (16 USC 824b) – to evaluate and subsequently approve or block proposed mergers by public utilities. However, FERC’s current merger policies incorporate guidelines from DOJ and FTC that were issued almost twenty years ago.

Specifically, the March 17th NOI asks whether or not FERC’s current approach should be amended to reflect FTC and DOJ’s new 2010 merger guidelines, and what impact, if any, those guidelines should have “on the Commission’s analysis of horizontal market power in its electric market-based rate program.”

Want more details? You’ve got your choice of well-written memos from White & Case, Alston + Bird, Dewey & LeBoeuf, and Bracewell & Giuliani.

Recycled Content Doesn’t Have to Be Boring

If, like me, you grew up in Seattle, you probably recycle without thinking. To not recycle is blasphemous. It’s also against the law.

Recycling: It's easy to do.

But that’s Seattle. Surprisingly, the EPA is not in a position to establish federal regulations mandating recycling. The EPA publishes information, guidance and provides technical support to encourage recycling programs, but, ultimately, it is up to state and local governments to regulate recycling of municipal solid waste. Currently the most the EPA offers, regulation-wise, is a recommendation to states that “source separation, recycling and resource conservation should be utilized whenever technically and economically feasible.” (40 CFR 256.31)

Some governments offer refunds for recycled beverage containers, others ban the disposal of recyclable items into landfills, while others simply set recycling goals for their state or city. Given that recycling programs vary from place to place, you should always review the rules and restrictions of your own municipality before tossing a given item into the recycling bin. Even products that are stamped with the ubiquitous recycling symbol are not necessarily accepted at all facilities.

Ah, the recycling or “three-chasing-arrows” symbol. Ever wonder about it? The original design was envisioned in 1970 by USC student Gary Anderson in response to a contest sponsored by the Container Corporation of America. The symbol is not trademarked, but its use is regulated by the Federal Trade Commission (FTC).

And that’s where the federal government steps in with regards to recycling. The FTC’s Green Guide addresses environmental advertising and marketing practices, and it specifically calls out recycling symbols. The clause on recyclability states, “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 can be substantiated, the claim should be qualified to indicate what portions are recyclable.” They give the following example:


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.

The SPI code that the FTC refers to is part of the SPI resin identification coding system, which was developed by the Society of the Plastics Industry in 1988 and is placed on plastic products to identify the polymer type and to help separate the different types for purposes of recycling. According to SPI, the code was not developed to be an indicator of “recyclability,” though certain polymer types are more widely recyclable in certain areas.

SPI codes are used internationally, though that hasn’t stopped some countries from developing their own versions of the recycling symbol. Below I offer some choice selections.

The Green Dot

The trademarked Green Dot is used in Europe to convey producer responsibility and efficient packaging waste management, though doesn’t have any bearing on whether the product itself is recyclable.

Japanese symbol for recyclable paper

Japanese recycling symbols use two or three of the familiar chasing arrows, though the shape these arrows form can vary according to the type of recyclable material.

A Taiwanese recycling symbol

This neon green Taiwanese recycling symbol is guaranteed to catch your eye.

And perhaps I’m just feeling patriotic, but it’s hard to argue that this US federal recycling logo isn’t the most regal of them all:

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