What are the FTC Green Guides? / Matt Karmel is a sustainability lawyer

https://offitkurman.com/?s=karmel

Really great to speak with Mr. Matt Karmel, attorney and chair of Offit Kurman’s Environmental and Sustainability Practice, about all of the FTC green guides and how they will affect sustainable packaging! 
 
Are you prepared to follow the FTC green guides? What if your consumer doesn't understand your sustainability statements? Does reusable packaging have a place in the future of sustainable packaging? If you find you are asking these questions Matt is a great contact for you. He is passionate about sustainability and the environment, and has been widely recognized by industry and regulators for his leadership and influence in the fields of environmental law and sustainability. In addition to traditional environmental compliance and counseling, Matt counsels brands on compliance with packaging laws, including laws relating to environmental advertising under the Federal Trade Commission’s Green Guides.

For more information, resources and to connect with Matt check out the links below:

LinkedIn: Matthew Karmel | LinkedIn

Website: Matthew Karmel | Offit Kurman

Newsletter: The Planetary Lawyer Project

Email: matthew.karmel@offitkurman.com

Phone: 973-245-9905

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I'm here to help you make your packaging more sustainable! Reach out today and I'll get back to you asap.

This podcast is an independent production and the podcast production is an original work of the author. All rights of ownership and reproduction are retained—copyright 2022.

Transcript

Cory Connors: 0:31

Welcome to Sustainable Packaging with Cory Connors. Today's guest is somebody very different than normal here. We've got a lawyer on the stage and I'm excited to introduce him. Mr. Matt Karmel , how are you, sir?

Matthew Karmel: 0:43

I'm doing very well today, Corey.

Cory Connors: 0:44

How are you? Good. I'm thrilled to, to speak to you about this different aspect of sustainability and it's so important, but I want to let you introduce yourself and, and tell us a little bit about your

Matthew Karmel: 0:56

background. Thanks. So I'm a principal and the chair of the Environmental and Sustainability Law Group at Offit Kerman, which is a full service am law 200 law firm, the national footprint, and very regional expertise as well. Personally, you know, I'm very passionate about sustainability in the environment. You know, I've been lucky enough to be recognized by industry and regulators for leadership and influence in the field of environmental law and sustainability. Wow. And I get to work on traditional environmental compliance matters, counseling, litigation, those kinds of things. But then also really niche sustainability issues. And, and one of those things, you know, relate is, is counseling brands on compliance with packaging laws. Mm-hmm., you know, including waste and recycling laws, but also. Claim laws relating to environmental advertising, which is what we wanna talk about.

Cory Connors: 1:50

Such a key point to this whole thing is with everything changing so quickly brands are struggling to keep up as well as suppliers like us are. We're struggling to keep up with all of the changes. So I think this is where you and your organization come in. So importantly can you tell us a little bit about some of the particulars, like what are the FTC Green Guides? And why should with the packaging industry be so aware of them?

Matthew Karmel: 2:16

Yeah, so companies make pro market products and services as having an environmental benefit. In this context, we're talking about packaging, having an environmental benefit. That can be, whether that it's compostable packaging or recyclable packaging, that it's made with a certain amount of recycled content that's made with renewable energy or that it's quote unquote sustainable. Those are marketing claims, and marketing claims are subject to both. State and federal law that protects consumers from false and misleading marketing claims. I'm sure that your listeners have heard of certain litigation or different things like that, or even just, you know, looked at a product and said, oh, this one says it's recyclable material in the packaging. I'm gonna buy that product instead of this other one. Right? So while state laws can be more restrictive, the touchstone in this area is the Federal Trade Commission Act and the Federal Trade Commission, ft. Quote, unquote, green Guides. The green guides are a guidance document. It's one document, even though it calls itself the guides,, . And that document contains standards and examples and guidelines to help companies understand what constitutes deceptive or misleading environmental advertising. If you wanna make a compostable claim or a recyclable claim, what are you gonna be judged? And so as the packaging industry continues to strive to be more sustainable, it's gonna want to communicate about its efforts. On packaging and in marketing materials to consumers, to brands. You know, if you're a supplier creating a, packaging, you're gonna wanna com supply that to your customers. The brands. If you're a brand, you're gonna want to communicate that information to the ultimate consumers, right? These claims will be subject to the FTC Green guides , which interestingly get updated every 10 years . And we are at the beginning right now of a major update. So this is a moment where over the past 10 years, there have been huge advancements and shifts in the packaging industry and applicable law. And so we're at the process of figuring out how are the FTC greeting guides gonna. How is that gonna change what packaging companies can put on their labels and how, , and really it's gonna trickle down into all different aspects of the industry. It's an

Cory Connors: 4:44

incredible time. And with extended producer responsibility laws and state by state, or even county by county differences in acceptable materials packaging companies and consumers of, I mean companies that use packaging will, will be frantically searching for answers over the next several months and several years. Do you have any predictions of, of what , the, the Green Guides will say , have they released any kind of teaser documents

Matthew Karmel: 5:15

or anything? Yeah, absolutely. And that's, that's the great part of where we are right now in the process. So the FTC has issued in notice indicating that it's starting the update of the green guides. That notice includes a bunch of. Areas, issues, questions that the FTC is currently seeking comments on so that, that combined with some of the major issues that have come up recently. Okay. There's ongoing litigation always , over the FTC Green Guides and in this case and in this context, packaging. And there are some significant issues that are coming out through that litigation that we're already seeing that are gonna be addressed in the green. For instance what does it mean to put a, a, a, a claim on a, on a package that says it is recyclable or 100% recyclable? Right. There's ongoing litigation right now involving Coca-Cola and the Sierra Club where Coca-Cola lists its packaging as being recyclable, and the Sierra Club has argu. The packaging that that bottle predominantly ends up in landfills. And this is just the argument. So if the bottle predominantly ends up in landfills, even if the product is recycle, quote unquote recyclable, in theory, you can't market it as recyclable if it's not actually being recycled. Right? And so this is something. The FTC is overseen by a Board of Commissioners, and one of the commissioners has highlighted this as a specific issue that they want to address in the FTC Green Guides update, and the notice discusses it as well. And so, you know, we're going to see this issue of what happens with recyclability, what happens with recyclable claims. In this time, and we're gonna see, I think, a significant series of comments from the plastic packaging industry, but also from industry groups, in part because the court cases, the litigation, have gone in favor of the plastic packaging industry in in several recent decisions. So this could be an attempt, you know, for the government and nonprofit groups. To pull, to rectify from their perspective, those decision.

Cory Connors: 7:39

Fascinating to think about that. I just heard today, just this morning about another company that's being sued in a class action lawsuit about this exact issue. It's those small coffee pods that you put in your, your coffee ma maker. Every morning they say they're recyclable, but what we're finding out is they're not always getting recycled. So I think. Fascinating to see. That's always been the case, right? Every, , almost all materials are recyclable. Are they getting recycled? Not always. Of course, nothing is a hundred percent to my knowledge, , and unfortunately, a lot of the numbers are even less than 10% for, for packaging materials. But those numbers are continuing to go. As far as I see and which is exciting and good news for, for most of us. And there's lots of plans in place, like extended producer responsibility laws and things like that, that are urging local municipalities to collect even more materials and providing. You know, some, some cost incentives to do so. So the green guides are, are over here, but are they overarching on, do they supersede the state law or how does that work?

Matthew Karmel: 8:59

I wanna make one more point about what we were just talking about first. Yeah. I answer that question. So, so I think, you know, we just talked about that in the context of recyclable claims, right?. And the, the other point to make in the context of recyclable claims is there are new recycling technologies coming out, including advanced or chemical recycling. Yeah. And one of the issues is whether or not that counts as recycling for the purposes of what we're talking about. Because there are some who say from a marketing perspective, a marketing claim perspective, that should not count. So that's another, that's another related.. And then you're also gonna see this fact versus hypothetical trickle down into other. More niche claims like compostable packaging. So does it get composted? You're gonna see all this different thing. That high level piece of in practice is this happening. And as you say, with the e P R laws, that puts more burden on the manufacturer. If you want to say something is. To make sure it's getting recycled right, or if you're saying that the waste is being handled in a certain way. But to your, to, to the question you were asking, states are allowed to in, in enact stricter laws, and if we take degradable claims as an example, the FTC. Allows degradable claims in certain instances and with certain qualifiers and with certain evidentiary pieces. But several states have taken the step of prohibiting sale of products packaging that has that claim on it. So it's an example of how states can be more restrictive. So it is really important for brands to survey things at the federal level, but also at a. Incredible.

Cory Connors: 11:28

It's it's so overwhelming and so daunting for, for most that I think a lot are playing the wait and see game. And what we've seen is that's not a good solution., we've seen. In I talked to my friend Paul in England the other day, and he said people that waited you know, manufacturers of packaging that waited and said, oh, this'll just all wash out in the pan. You know, really are hurting. Now they're, they're struggling to adapt to. So my advice is listen to people like Matt, understand what they're saying. Research on your own. Understand what you are packaging. If you are a company or a brand that makes or or uses packaging, understand what it's going to. How it's going to change. Do you need a plan B? Is it possible that p e t material won't be acceptable? You'll have to switch to the, you know what I mean? Like, so it's a, it's a fascinating future potential here.

Matthew Karmel: 12:33

Yeah. It, it really is. And another way that states can drive sort of the, this discussion. By enacting laws, and one of the laws that we've been talking about is E P r. Another one is recycled content requirements. Mm-hmm.. So states have started to roll out recycled content requirements and packaging. And as those states roll out those requirements, one brands need to be aware of them and, and comply with them, obviously. And, and there can be some very interesting and you know, far-reaching laws in, in, in that. But also again, as states roll out these requirements, manufacturers are gonna meet them and then they're going to wanna market that information to their customers. Right? And this is an area where the, where the FTC has requested substantial comment and as an interesting sort of nuance for people who are nerds about the industry,

Cory Connors: 13:32

Oh, . Right?

Matthew Karmel: 13:34

What does it mean to have recycled content in an in an A piece? Yeah. Is that anything? Is that post-consumer recycled content? Right? Is that recycled content, including material that's recaptured during the manufacturing process? Right. And as I started out, This is all about what the consumer understands. When you think about a claim you're making, you want to think about how do consumers interpret the claim? Are there common misunderstandings? And as a brand, how do we have to provide a basis to support the claim? And so when you think about those things in the content of recycled content and this issue of recapture during the manufacturing process or post. Right. What is a, what, what does your average Joe, who's at the supermarket understand about that? And I know that some of the state recycled content laws focus on post-consumer and not Yeah. Re recaptured because you know, that's a more significant, you know, incorporation, recovering post-consumer is harder and more environmentally beneficial than recovering during the manufacturing process. Both are essential. But they're, they're very different. And I know, you know, stepping into the grocery store, if, if I don't have my lawyer hat on right now, , , I don't, I'm not sure I would know what the difference was or realize it. So I think it's gonna be interesting to see how this plays out. And then it's gonna, it, it's gonna matter of making sure that you're marketing it correctly, making sure you as a brand understand the difference, which I'm sure you do. And then communicating that clearly through your.

Cory Connors: 15:17

Well said and such a key, important point because post-industrial recycled material is a lot easier for a lot of these manufacturers to get because it's a, it, it's part of the process in their facility. So it's sure easier to add in , five more percent of that because it's already there. But does, does that encourage more recycling? Not really. They're probably already doing that if they can accept that material. So fascinating to, to think about post-consumer versus post-industrial and what those laws will say. And can you be too specific on your packaging? Can you say this material is made from. 10% post-industrial waste. And will that be will that make a consumer say, oh, that's not really recycling. Or will that make a consumer say, oh, recycled great. That's more, that's better for the environment. So there's this, this catch 22 where you have to be specific, but if you're too specific, you might tip your hat to people and, and make them.

Matthew Karmel: 16:25

Yeah, just, and you have to be specific in a way that the consumer understands, right? So, you know, and I think that's one of the reasons that we're focusing on post-industrial. Cause if the consumer doesn't know what post-industrial means, then you're being transparent, but not in a way that means something to the consumer and could still then be considered to be misleading. And that's, I think, the, the really, the really important thing to vet your packaging claims against. You know? Wow. You may, you may think you've been totally trans. In industry speak, but if the consumer doesn't understand it the same way, you haven't met the goal and you could be in trouble.

Cory Connors: 17:00

I hadn't even thought of that. That is fascinating to think about. I just noticed it. The award behind you is that from waste Expo. It is, it's, oh,

Matthew Karmel: 17:08

congratulations. I was very, you know you know, honored to be one of the 40 under 40 award winners from last

Cory Connors: 17:14

year. Oh, congratulations. I was there at the event. I, I I'm sorry I didn't meet you there,

Matthew Karmel: 17:20

I, I actually didn't get a chance to make it, but, Oh, . I know, that's, I know, but

Cory Connors: 17:25

maybe this. My friend Jonathan Quinn, also won an award, so I went there to kind of take some pictures of him getting his award and everything. Liz Bothwell, who runs that event, is an incredible person. Just oh, so incredible. If you're listening and you don't know her, I highly recommend reaching out to her and showing up to the Next Waste to Expo, which will be in New Orleans in May.

Matthew Karmel: 17:47

Yeah, waste 360 has been wonderful and given me a platform to talk about so many of these sustainable issues that intersect the waste industry. So I'm very grateful to Liz and everyone else at Waste 360.

Cory Connors: 17:58

Very cool. And, and what a great purpose you have here. I, I wanna talk about compostable a little bit. I think., it's very confusing to people. You say, and it used to, they used to say biodegradable. Now I know that's not an appropriate word to use anymore and really frowned upon. So I don't think, I think that'll probably be against the law to use on. Packaging is, is kind of what I'm, I'm hearing and, and learning. Do you agree that biodegradable will will not be acceptable and that compostable will have to be defined?

Matthew Karmel: 18:32

I think that's likely, I think, I think biodegradable. I mean, it's already been banned in many states. I think, I think we could see it be banned by the FTC through these, through these guides. Maybe not. You know, there is at least one case. Involving the FTC Green Guides, where the, they've determined that packaging was not misleading. Wow. When it was labeled as degradable and degradable over a long period of time. When, going back to what we were saying before, the packaging was very transparent as to what percentage degradability it or what time period. I'm just not sure that's gonna continue to be the standard. Mm-hmm., it would be a depart. But I, I might say I'm hopeful.. Cory Connors: So tell us why. Tell us why, Matt, why is biodegradable kind of a bad word in the environmental space? So, I think it goes back to the, what happens to the material type thing. When people see degradable, they often think compostable, right? And putting that product in a composting waste, in a compostable waste. Will contaminate that. And so, so in, in many instances, you're not seeing the intended benefit. You're not seeing the lifecycle work the way it's supposed to. The words that we put on packaging are supposed to sell our products, but also support the flow of waste in the way that we want. That we, we, as a society want to, to be as environmentally friendly as we can. And if both of those things aren't really lining up, we probably need to go in a different direction. So key,

Cory Connors: 20:11

such a true statement and. When you say compostable and consumer thinks, oh, I can throw this in my back garden and it'll be fine. Wait, hold on. What I meant was industrial compostable. Well, what does that mean? I don't have access to that. You know, and very few people do. Right now, but hopefully those numbers will grow. If, if compostable packaging still , is one of the solutions, which I think it probably is over the long term. But I'd love to hear your thoughts. What, what would you, if you were in charge of the situation, what, what would you say, Hey, companies, you need to make packaging recyclable or you need to make, , what would you, if you could wave your magic wand, what would you.

Matthew Karmel: 20:57

Yeah. I mean, I might go for reusable, but that's that's, I love that. That's a different, that's a different

Cory Connors: 21:03

conversation I think a little bit, but it could be this conversation if you want. Well,

Matthew Karmel: 21:07

yeah, , I mean, I'm a big fan of reusable packaging. We have a zero waste store right near me, which allows you to bring your own reusable packaging and fill it and fill and refill, you know, different items. I, I think that's great. You know, but then at the end of the day, there's a right solution for a right scenario., you know, reusables not gonna always be the right solution. Compostables not always gonna be the right solution. Recyclables not always gonna be the right solution, but I'm a firm proponent of the right fit for the right job. And so finding the right piece and, and putting it in, putting it into play I, I just think it's in the context of this discussion, it's very important to have the right messaging associated with it so that what, as I said, whatever we said is gonna happen to that. Is what happens to it. Oh, that's it.

Cory Connors: 21:54

Well said., and we have to follow through and we have to continue and keep this material circular keep it working in the, in the system so we don't have to harvest raw materials as much. Yeah, very true. Exactly. Yeah. Well, is there anything I, I didn't ask you that I wish I., Matthew Karmel: let's talk I think that's where we, that's where we should end, because I think that's the most forward looking aspect of this. I love that. So we've sort of touched on this a couple times, but the green guides get enforced either directly by the ftc. Everyone is, is everyone understands that a regulator can come after your company if you're doing something wrong. But it can also come through class action lawsuits from from the ultimate end user. Or it can come from private party actions from your competitors. Mm-hmm.. Um, So there's a lot of different ways these things can, can, things can come up. And we have seen some debates, discussions, claims, litigation involving the word sustainable because interestingly, when the FTC guides were last updated, That was a term that the FTC decided was not definable. You know, there wasn't, there weren't enough standards for, for some, for them to say, okay, you can say your packaging in this sentence is sustainable if you meet X, Y, and Z criteria. They've reopened that door right now. I think that calling it an open door is it's an open frontier, , because I think the packaging industry would like to call itself more sustainable. I think packaging would like to say sustainability on it, but in a realm where you have these sort of loose guidelines and the threat of enforcement and. It's, it's going to remain a frontier for a while, but I'm really curious to see how that plays out. You know, and sustainable claims are, I think, in this discussion, are a stand in for these larger claims that are being made on packaging about e s G, about social impact, about these kinds of things. When you step off the specific technical standards and you go to, so. Mission based Really? Hmm. And figuring out how you navigate that line. I think that's, I'm not sure that we're gonna be able to get there in this update of the green guides, but maybe between now and 2033 when we're redoing these again. Right. Packaging industry with the leadership that it's shown over the last 10 years will be closer to that. And so I think that's the. If I'm gonna leave us with a charge, I think that's the charge is, if we can't define it now, let's continue along the path that the pa, the industry is on. Embracing sustainability very, I think significantly and wholeheartedly, and let that become the fabric of the future of the industry and let it trickle its way into the green guides at the same. Soki such a, such an important point. I remember when it was called environmentally friendly or. You know, and it's, it's so interesting how the, the phrases and the terminology becomes, becomes fashionable and, and not, and . So I'm totally prepared for the word sustainable to either fall out of fashion or to become the essence of truth. And I, I hope you're right. I hope it becomes part of the, the verbiage we can use moving forward. So Matt, what's the best way for people to get in touch with you if they have questions or wanna work with your company?

Matthew Karmel: 25:31

I know you'll put in the show notes, you know, links to my LinkedIn. I'm very active on LinkedIn, but you know, we have our website, my email address, my phone number. I think that'll all be in there. And you know, I'm looking forward to, to continuing the conversation offline with anyone who's

Cory Connors: 25:45

interested. Thank you again, sir, and thank you Landsberg Orora for sponsoring the podcast. We appreciate it. If you're listening, make sure you subscribe so you don't miss the next episode and give us a review. We appreciate that. Thank you so much.