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What do dirty diapers and deceptive ads have in common? (We’ll pause a moment so you can add your own punch line.) Now that’s out of the way, the action against Portland-based Down to Earth Designs – consumers know them as gDiapers – is the FTC’s latest effort to ensure the accuracy of environmental marketing claims. But even if green isn’t your game, the case also offers insights into what the FTC calls “unqualified claims.”
gDiapers is a diaper system that includes a reusable outer shell (gPants) and disposable inner liners (gRefills). The company also sells gWipes baby wipes. According to the FTC’s lawsuit, gDiapers made a load of claims that falsely characterized the environmental benefits of its products.
For example, the company promoted gRefills as “100% biodegradable” (or even “certified 100% biodegradable”), including when thrown away in the trash or flushed. Under the headline “A diaper shouldn’t last forever,” the company claimed, “50 million diapers enter the landfill every day. Each one takes up to 500 years to break down. gDiapers are the only earth-friendly diapers that are 100% biodegradable. gDiapers biodegradable gRefills can be flushed, home composted, or tossed.” The company also promoted gWipes as biodegradable and gDiapers were described “a plastic-free option that’s easier on the planet.”
Impressive promises for environmentally-minded Moms and Dads interested in minimizing the impact of kiddie litter, but the FTC says the company’s claims were short on the truth. For example, while touting the products’ biodegradability, gDiapers also said users could toss gRefills and gWipes in the trash. The problem is that more than 90% of municipal solid waste in the U.S. is disposed of in landfills, incinerators, or recycling facilities – not ideal conditions for stuff to biodegrade within a reasonably short period of time.
What about the advertised environmental benefits if gRefills are flushed? According to the complaint, that claim goes down the drain, too. As it happens, municipal wastewater facilities filter out a portion of flushed gRefills and send that material to landfills. Of the material that isn’t filtered out, only a part may degrade in the wastewater system during the treatment process. As a result, a significant portion of flushed gRefills don’t biodegrade. What about the “plastic free” promise? Among other things, the gPants part of the system contain plastic, making that claim misleading, too.
The FTC also challenged as deceptive the company’s claim that gRefills and gWipes are compostable – in other words, that they’ll break down into or otherwise become part of usable compost in a safe and timely manner in an appropriate composting facility or a home compost pile or device. What the company failed to adequately disclose is that products soiled with solid human waste aren’t safe to compost. And as any parent knows, the number one characteristic of a dirty diaper is, well, number two. That’s why the FTC says that limitation on the “compostable” promise was material to consumers. The complaint also charged that gDiapers didn’t have adequate substantiation that gWipes are home compostable.
Among other things, the proposed order will put protections in place to prevent future misrepresentations about the environmental benefit of any product, package, or service the company markets. The deadline for filing online comments about the settlement is February 18, 2014.
What’s the message for advertisers?
First, substantiate your claims carefully before touting the environmental advantage of any product. Furthermore, it’s unwise to slap a “biodegradable” label on stuff likely to wind up in landfills or incinerators. It’s also not a good idea to market a product as “compostable” without the requisite scientific support. The FTC’s Green Guides are chockfull of advice and examples to help keep your green claims clean.
Second, if your product offers benefits only when used (or, in this case, disposed of) in a certain way, the onus is on you to explain those conditions carefully. When you make promises without limits or caveats – the FTC refers to them as “unqualified claims” – it’s reasonable for consumers to assume they’ll get the advertised benefit. If that’s not the case, don’t make the unqualified claim. That well-established principle applies to green claims and representations of every other color, too.
Third, if you need to give consumers additional information to explain your claim, hard-to-find, hard-to-read, or difficult-to-understand text won’t do the trick. For example, the FTC charged that in some cases, gDiapers made broad product compostability claims on its homepage, only to reveal important limitations elsewhere on the site. Similarly, the front of the gRefills and gWipes packages touted the products’ biodegradability, only to reveal key limitations in smaller print on the back. The law is well-established: If the disclosure of information in necessary to prevent a claim from being deceptive, it has to be clear and conspicuous. One factor in that analysis is how close the claim and the limiting language are to each other.
