AB 362 - Environmental Advertising - Letters of Support

Rick Best (rgbest@ix.netcom.com)
Fri, 22 Jan 1999 16:58:09 -0500


** ACTION ALERT **

TO: Interested Parties
FR: Rick Best
DT: March 27, 1997
RE: AB 362 (Bowen) - Truth in Environmental Advertising - SUPPORT

Assembly Bill 362 has been introduced by Assembly Member Debra Bowen. The
bill reintroduces the Truth in Environmental Advertising Law, AB 3994
(Sher), that was signed into law in 1990, but was repealed by SB 426
(Leslie) in 1995.

AB 362 establishes clear standards for the use of certain environmental
marketing terms, including "recycled," "biodegradable," photodegradable,"
and "ozone friendly." The bill currently does not include "recyclable," a
term that was contained in the original 1990 law, but was thrown out by the
courts as being unconsitutionally vague. We hope that the author will
include "recyclable" in the bill once a suitable definition can be written.

Background. Soon after the introduction of the original law, industry
groups sought to have the law nulified by the courts, challenging the law
as violating the First Amendment protections for free speech. The State of
California, along with Californians Against Waste and the Environmental
Defense Fund who joined in the State's defense, successfully argued that
the law was an appopriate regulation of commerical speech. The industry's
appeal of the appeals court decision was denied by the U.S. Supreme Court
on October 2, 1992, thus upholding the constitutionality of the law.
Unfortunately, Governor Wilson signed SB 426 four days later, repealing the
entire law.

Existing statutes now refer to the Federal Trade Commission (FTC)
guidelines which are unenforceable and provide only general guidance for
the use of environmental marketing claims. Furthermore, the guidelines do
not contain any specific standards such as those contained in the original
California law. For example, a product or package may be labeled as
"recycled" under the FTC guidelines even if it has no postconsumer content;
the original California law required at least 10% postconsumer content to
label a product as "recycled."

The bill is scheduled to be heard in Assembly Consumer Protection Committee
on Tuesday, April 8th. Letters in support of the bill are needed. Please
address your letter to the author at:
Assembly Member Debra Bowen (916) 445-8528
California State Assembly (916) 327-2201fax
State Capitol, Room 4112
Sacramento, CA 95814

In your letter, please highlight why you believe it is important to have a
Truth in Environmental Advertising Law here in California. In particular,
please highlight how the public can be mislead through the use of the terms
"recycled" and "recyclable" and why clear standards are necessary to
prevent public confusion. You might highlight how the members of the
public react when they take items labeled as "recyclable" to a recycling
center or put them in their curbside bin, but are then told that the items
cannot be "recycled."

Please be sure to fax a copy of your letter to CAW at (916) 443-3912. For
a copy of the bill or for more information, please give Rick Best a call at
(916) 443-5422.

** CAW Letter **

April 1, 1997

Assembly Member Susan Davis
Chair, Assembly Consumer Protection Committee
State Capitol
Sacramento, CA 95814

RE: AB 362 (Bowen) - Environmental Advertising - SUPPORT

Dear Assembly Member Davis:

Californians Against Waste urges your support of Assembly Bill 362 by
Assembly Member Debra Bowen. AB 362 reintroduces the California Truth in
Environmental Advertising Law which was passed into law in 1990 by AB 3994
(Sher), but was repealed in 1995 by SB 426 (Leslie).

AB 362 establishes clear standards for the use of environmental marketing
claims, including the use of the terms "recycled," "photodegradable,"
"biodegradable" and "ozone friendly." Establishing these clear standards
ensures that consumers will be provided with meaningful claims on products
and packages and provides manufacturers with certainty regarding what is a
permissible environmental marketing claim. It also provides clear
standards by which to take action when false or misleading advertising
claims are made.

The Truth in Environmental Advertising Law was first passed in 1990 by
Assembly Member Byron Sher. The bill passed in response to a flood of
environmental marketing claims made during the late 1980's. At the time
manufacturers were trying to take advantage of the "green" movement and
identify their product as environmentally friendly even when there were no
environmental attributes or features which could distinguish the product.
The law succeeded in curbing the misuse of several specific terms as well
as the blatant use of false environmental claims by product makers and
advertisers.

Unfortunately, the law was repealed in 1995 with the false understanding
that the State would be moving towards a national standard for
environmental marketing claims. The legislation which repealed the law, SB
426, made reference to the Federal Trade Commission Guidelines for the Use
of Environmental Marketing Claims ("FTC Guides"). Unfortunately, the FTC
guides contain only general guidelines and examples for marketing claims
and cannot be enforced. All of the actions taken by the FTC against
companies making environmental claims have been made under the FTC's
general authority to regulate marketing claims. Both AB 362 and the
original law have a provision which invalidate the California's
requirements if the products meet the defintions contained in any trade
rules adopted by the Federal Trade Commission. Such uniform national
standards have never been adopted.

The repeal of the Truth in Environmental Advertising Law was orchestrated
by manufacturers after their unsuccessful attempt to strike down the law in
the courts. In 1992, a coalition of ten industry groups, including the
Association of National Advertisers, the Society for the Plastics Industry,
and the California Chamber of Commerce, filed suit against the law charging
that it violated their First Amendment rights to free speech. Throughout a
lengthy court battle including an appeal to the United States Supreme
Court, the courts upheld the law finding that it was a proper regulation of
commercial speech.

One major environmental marketing claim which AB 362 will address is the
use of the term "recycled." AB 362 requires any product labeled as
"recycled" to contain at least 10% postconsumer material. Under the
current FTC guidelines, a product can be labeled as "recycled" even if the
product has no postconsumer material. Consequently, products which contain
only scraps from the manufacturing floor and contain none of the material
collected in local residential and business recycling programs can still be
labeled as "recycled." But when the consumer goes to the store, they
expect that the product is made from the paper, glass, metals and other
materials that they recycle at home or work. AB 362 will ensure that those
products contain at least 10% postconsumer material.

Another major claim which has frequently been abused is the use of the term
"recyclable." Manufacturers continue to label a variety of products as
recyclable, even though few if any facilities in California will accept
them for recycling. Consumers want to know when a product can be recycled
in their community, not simply if it is technically recyclable but no
facilities exist to recycle it.

We believe AB 362 should be expanded to include a definition for the term
"recyclable." A definition for "recyclable" was included in the original
law, but it was understood the definition needed refinement. Unfortunately,
manufacturing representatives pulled out of negotiations when cleanup
legislation was proposed in 1992 (AB 144) and the original definition was
subsequently struck down by the courts. Manufacturers should sit down with
consumer and environmental groups and come up with a definition that will
work for both consumers and manufacturers.

We urge you to support AB 362 in committee next Tuesday. AB 362 will
provide clear, enforceable standards for environmental marketing claims and
ensure that consumers are provided accurate information about the products
which truly benefit the environment.

Sincerely,

Rick Best
Policy Director

cc: Members, Assembly Consumer Protection Committee
Assembly Member Debra Bowen
Senator Byron Sher

** Text of Bill **

BILL NUMBER: AB 362 INTRODUCED 02/19/97

INTRODUCED BY Assembly Member Bowen

(Coauthor: Senator Sher)

FEBRUARY 19, 1997

An act to amend Section 17580 of, to add Section 17508.5 to, and to repeal
Section 17580.5 of,
the Business and Professions Code, and to repeal Section 1 of Chapter 642
of the Statutes of 1995,
relating to environmental advertising.

LEGISLATIVE COUNSEL'S DIGEST

AB 362, as introduced, Bowen. Environmental advertising.

(1) Existing law provides that it is a misdemeanor for a person to make any
untruthful, deceptive, or
misleading environmental marketing claim, whether explicit or implied, and
defines "environmental
marketing claim" to include any claim contained in the "Guides for the Use
of Environmental
Marketing Claims" published by the Federal Trade Commission. Existing law
also provides that it is a
defense to a suit or complaint brought under these provisions if a person's
environmental marketing
claims conform to the Federal Trade Commission standards, as specified.

This bill would repeal these and related provisions and instead would make
it unlawful for a person to
represent that a consumer good, as defined, which it manufactures or
distributes, is "ozone friendly,"
"biodegradable," "photodegradable," or "recycled," unless that article
meets specified definitions or
meets definitions established in trade rules adopted by the Federal Trade
Commission. Since
violation of these provisions would be a misdemeanor, the bill would create
a new crime, thereby
imposing a state-mandated local program.

(2) The California Constitution requires the state to reimburse local
agencies and school districts for
certain costs mandated by the state. Statutory provisions establish
procedures for making that
reimbursement.

This bill would provide that no reimbursement is required by this act for a
specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated
local program: yes.

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. Section 17508.5 is added to the Business and Professions Code,
to read:

17508.5. It is unlawful for any person to represent that any consumer good
that it manufactures or
distributes is "ozone friendly," or any like term that connotes that
stratospheric ozone is not being
depleted, "biodegradable," "photodegradable," or "recycled" unless that
consumer good meets the
definitions contained in this section, or meets definitions established in
trade rules adopted by the
Federal Trade Commission. For the purposes of this section, the following
words have the following
meanings:

(a) "Ozone friendly," or any like term that connotes that stratospheric
ozone is not being depleted,
means that any chemical or material released into the environment as a
result of the use or production
of a product will not migrate to the stratosphere and cause unnatural and
accelerated deterioration of
ozone.

(b) "Biodegradable" means that a material has the proven capability to
decompose in the most
common environment where the material is disposed within one year through
natural biological
processes into nontoxic carbonaceous soil, water, or carbon dioxide.

(c) "Photodegradable" means that a material has the proven capability to
decompose in the most
common environment where the material is disposed within one year through
physical processes,
such as exposure to heat and light, into nontoxic carbonaceous soil, water,
or carbon dioxide.

(d) "Recycled" means that an article's contents contain at least 10
percent, by weight, postconsumer
material, as defined in subdivision (b) of Section 12200 of the Public
Contract Code.

(e) "Consumer good" means any article that is used or bought for use
primarily for personal, family,
or household purposes.

(f) For the purposes of this section, a wholesaler or retailer who does not
initiate a representation by
advertising or by placing the representation on a package shall not be
deemed to have made the
representation.

SEC. 2. Section 17580 of the Business and Professions Code is amended to
read:

17580. (a) Any person who represents in advertising or on the label or
container of a consumer
good that the consumer good that it manufactures or distributes is not
harmful to, or is beneficial to,
the natural environment, through the use of such terms as "environmental
choice," "ecologically
friendly," "earth friendly," "environmentally friendly," "ecologically
sound," "environmentally sound,"
"environmentally safe," "ecologically safe," "environmentally lite," "green
product," or any other like
term, shall maintain in written form in its records the following
information and documentation
supporting the validity of the representation:

(1) The reasons why the person believes the representation to be true.

(2) Any significant adverse environmental impacts directly associated with
the production,
distribution, use, and disposal of the consumer good.

(3) Any measures that are taken by the person to reduce the environmental
impacts directly
associated with the production, distribution, and disposal of the consumer
good.

(4) Violations of any federal, state, or local permits directly associated
with the production or
distribution of the consumer good.

(5) Whether or not, if applicable, the consumer good conforms with the
uniform standards
contained in the Federal Trade Commission Guidelines for Environmental
Marketing Claims for the use of the terms meets the definitions of "recycled,"
"recyclable," "biodegradable," "photodegradable," or "ozone friendly."
friendly," as
defined in Section 17508.5.

(b) Information and documentation maintained pursuant to this section shall
be furnished to any
member of the public upon request.

(c) For the purposes of this section, a wholesaler or retailer who does not
initiate a representation by
advertising or by placing the representation on a package shall not be
deemed to have made the
representation.

(d) It is the intent of the Legislature that the information and
documentation supporting the validity of
the representation maintained under this section shall be fully disclosed
to the public, within the limits
of all applicable laws.

SEC. 3. Section 17580.5 of the Business and Professions Code is repealed.

17580.5. (a) It is unlawful for any person to make any untruthful,
deceptive, or misleading environmental marketing claim, whether explicit or
implied. For the purpose of this section, "environmental marketing claim"
shall include any claim contained in the "Guides for the Use of
Environmental Marketing Claims" published by the Federal Trade Commission.

(b) It shall be a defense to any suit or complaint brought under this
section that the person's environmental marketing claims conform to the
standards or are consistent with the examples contained in the "Guides for
the Use of Environmental Marketing Claims" published by the Federal Trade
Commission.

SEC. 4. Section 1 of Chapter 642 of the Statutes of 1995 is repealed.

SECTION 1. The Legislature finds and declares that it is the public policy
of the state that environmental marketing claims, whether explicit or
implied, must be substantiated by competent and reliable evidence to
prevent deceiving or misleading consumers about the environmental impact of
products and packages. Accurate and useful information about the
environmental impact of products and packages will not be available to
consumers unless uniform standards for environmental marketing claims, such
as the Federal Trade Commission Guidelines for Environmental Marketing
Claims, are adopted by the various states.

SEC. 5. No reimbursement is required by this act pursuant to Section 6 of
Article XIIIB of the
California Constitution because the only costs that may be incurred by a
local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or
infraction, or changes the penalty for a crime or infraction, within the
meaning of Section 17556 of
the Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article
XIIIB of the California Constitution.

Notwithstanding Section 17580 of the Government Code, unless otherwise
specified, the provisions
of this act shall become operative on the same date that the act takes
effect pursuant to the California
Constitution.