In recent months, companies have scored some notable victories in lawsuits involving various types of green claims, including carbon emission claims, aspirational claims, and recyclability claims. As we noted in some of those posts, the decisions may have turned out differently if the cases had been heard by NAD. A new decision in a challenge that NAD initiated against various claims made by the American Beverage Association (or “ABA”) shows how strictly NAD reviews these types of claims.
NAD found that several of ABA’s claims – including claims that “our bottles are made to be remade,” “we’re carefully designing our bottles to be 100% recyclable, and that the association was “increasing awareness about the value of 100% recyclable plastic bottles” – were substantiated. But NAD came to a different conclusion on other claims that, in NAD’s view, may have exaggerated the results of ABA’s efforts. Here are some of the highlights.
Although NAD determined that certain bottles could be recycled in 60% or more recycling programs nationwide, NAD found that ABA’s claim that “they’re collected and separated from other plastics so they can be turned back into material that we use to make new bottles” conveys a message that the bottles are recycled (as opposed to a message that they can be recycled). NAD held that “the challenged claim does not make clear that this is a goal towards which the companies are working to achieve.”
NAD also determined that ABA’s claim that it is “working with World Wildlife Fund through their ReSource: Plastic to reduce our plastic footprint” is “an objective claim that requires substantiation, even if it is premised on a third-party tracking mechanism tied to an aspirational goal.” NAD had several concerns about the mechanism. For example, a WWF report had “identified several flaws in the data collection” and cautioned readers “about significant data assumptions and limitations.”
NAD also inquired about ABA’s claims about its efforts to “modernize the recycling infrastructure in communities across the country.” NAD found that ABA’s efforts are occurring in some communities in many states, but not broadly in communities “across the country,” as the claim states. In addition, NAD found that although ABA had made some noteworthy progress, some of that progress “does not necessarily relate to infrastructure modernization.”
ABA has indicated that it will appeal parts of the decision, so we may not have the last word on this yet. Nevertheless, the case suggests that green claims continue to be a high priority at NAD. (Indeed, several of the recent cases involving green claims were initiated by NAD itself, as opposed to being initiated by competitors.) It also shows how carefully NAD will parse words in claims and how deeply it will dive into the evidence presented. We expect this trend to continue.