Food and Drink - Summer 2011 - (Page 51)

food law I In response to growing consumer demand, many companies these days are marketing their products based on their environmental attributes. Customers are looking for products that are good for the environment and perceived to be healthier. But with these increased green claims comes greater scrutiny from regulators and consumer activists. There has been an increase in consumer class action litigation concerning false green claims and the Federal Trade Commission (FTC) has increased enforcement against those making misleading claims. Green Benefit Claims The new Green Guides warn marketers to avoid all unqualified claims – such as a product being green or environmentally friendly – unless the claim is clearly qualified on the label. All qualifications must be clear, prominent and specific. You can state that a product uses 10 percent less material than your previous product, but cannot say that the product is simply “eco-friendly” without qualification. The guides also warn against using certifications or seals of approval, which imply that your product is green. There are now a myriad of environmental seals and certifications available, and some companies are self-certifying their own products. The new guides consider such self-certification deceptive unless all material connections to the certifier are clearly disclosed on the label. Third-party seals also are not allowed unless they can be substantiated and unless there is clear and prominent language on the label limiting the green benefit to a specific attribute. The new guides warn against claiming that a product is degradable, compostable or recyclable if the product is not typically disposed of in situations that would lead to such a result. For example, a product should not be claimed to be degradable if it is normally disposed of in a landfill, incinerator or recycling facility where it cannot degrade, even if the product would degrade as litter on the side of the road. A claim that a product is free of a particular substance may be deceptive So what is a false and misleading environmental claim? Since the early 1990s, the FTC has used its Guides for the Use of Environmental Marketing Claims – the so-called “Green Guides” – to help guide marketers making green claims. Late last year, the FTC published significant proposed revisions to the Green Guides that will alter what companies can say in green marketing. The purpose of the Green Guides is to ensure that environmental claims are true, substantiated and consistent with consumer expectations. The FTC spent almost three years revising the guides, including extensive consumer perception research aimed at determining consumers’ understanding of green claims. Marketers can get in trouble if the FTC determined that consumer expectations differ from what a marketer may have intended. For example, the new guides essentially prohibit any claim that a product normally disposed of in the trash is degradable. The agency found that, to make a degradable claim, the product must completely break down within a year. However, it also determined that decomposition will not occur in a landfill within one year. As a result, the FTC brought highly publicized enforcement actions against marketers who claimed their paper plates were degradable since paper plates are normally disposed of in landfills. So what does this mean for the food and drink industry? The new Green Guides address a number of environmental marketing claims that are relevant to your company. if the substance was never associated with the product or if the product contains a substance that has the same environmental risk as the missing substance. For example, a claim that a coffee filter is chlorine-free may be misleading if the filter is bleached without chlorine, but instead with a process that releases a reduced – but still significant – amount of the same harmful byproducts associated with chlorine bleaching. Similarly, to make a non-toxic claim, the product must be non-toxic to both humans and the environment. In response to consumer demand about addressing climate change, many companies are now making claims about their energy use and carbon emissions. The guides warn that a marketer should not make unqualified statements that a product is made from renewable energy if the product was made using any power from fossil fuels or if less than all of the manufacturing process were powered by renewable energy. In addition, to make a claim about carbon offsets, the marketer has to have scientific evidence and support the offset claim, and it cannot advertise the claim if the offset will not occur within two years. The new FTC Green Guides provide a roadmap for marketers seeking to make green claims. It is important that companies consult the guides before launching a new product that invokes any green claims. In the end, a green marketing claim is like any other claim – it must be true, it must be substantiated, and it must be consistent with consumer expectations about the meaning of green terms. The new Green Guides provide important information about what the FTC thinks about such expectations. Manufacturers in the food and drink industry need to be well-versed in these requirements and have an effective process for compliance. Colin Deihl is a partner in the international law firm of Faegre & Benson and practices out of its Denver location. He can be reached at cdeihl@faegre.com. food and drink • spring 201 • www.fooddrink-magazine.com 1 51 http://www.fooddrink-magazine.com

Table of Contents for the Digital Edition of Food and Drink - Summer 2011

Food and Drink - Summer 2011
Tableside Chat
Contents
News a la Carte
Tradeshow Preview
Food for Thought
FAD Exclusive
Fresh From the Start Brands
Railex
Orchard View Farms Inc.
Grandma Hoerner’s
Greencore USA Inc.
FoodSwing Inc.
Pecans.com
RPE Inc.
Dari Mart Stores Inc.
Idylwilde Farms
Kemin Industries Inc.
Olga’s Kitchen
Distributors: How Green Can You Be?
Kohl Wholesale
Nebraskaland
Upper Lakes Foods Inc.
B. Giambrone & Co.
Food Sales West
Milne Fruit Products Inc.
Pellerito Foods
PrimeSource Foodservice Equipment
Town & Country Foods
Producers: The Industry Pitfall
Walker & Sons
Bright Coop Inc.
Covered Bridge Potato Chip Co.
Route 11 Potato Chips
Royal Sausage Co.
Restaurants: Values Drive Sales
El Meson Sandwiches
Peter Piper Pizza
Retailers: The Unwelcomed Guest
Arabica Coffeehouse
Kolache Factory
Reasor’s
Three Things

Food and Drink - Summer 2011

Food and Drink - Summer 2011 - Food and Drink - Summer 2011 (Page Cover1)
Food and Drink - Summer 2011 - Food and Drink - Summer 2011 (Page Cover2)
Food and Drink - Summer 2011 - Tableside Chat (Page 1)
Food and Drink - Summer 2011 - Tableside Chat (Page 2)
Food and Drink - Summer 2011 - Contents (Page 3)
Food and Drink - Summer 2011 - Contents (Page 4)
Food and Drink - Summer 2011 - Contents (Page 5)
Food and Drink - Summer 2011 - News a la Carte (Page 6)
Food and Drink - Summer 2011 - News a la Carte (Page 7)
Food and Drink - Summer 2011 - Tradeshow Preview (Page 8)
Food and Drink - Summer 2011 - Tradeshow Preview (Page 9)
Food and Drink - Summer 2011 - Food for Thought (Page 10)
Food and Drink - Summer 2011 - Food for Thought (Page 11)
Food and Drink - Summer 2011 - FAD Exclusive (Page 12)
Food and Drink - Summer 2011 - FAD Exclusive (Page 13)
Food and Drink - Summer 2011 - Fresh From the Start Brands (Page 14)
Food and Drink - Summer 2011 - Fresh From the Start Brands (Page 15)
Food and Drink - Summer 2011 - Fresh From the Start Brands (Page 16)
Food and Drink - Summer 2011 - Fresh From the Start Brands (Page 17)
Food and Drink - Summer 2011 - Fresh From the Start Brands (Page 18)
Food and Drink - Summer 2011 - Fresh From the Start Brands (Page 19)
Food and Drink - Summer 2011 - Fresh From the Start Brands (Page 20)
Food and Drink - Summer 2011 - Railex (Page 21)
Food and Drink - Summer 2011 - Railex (Page 22)
Food and Drink - Summer 2011 - Railex (Page 23)
Food and Drink - Summer 2011 - Railex (Page 24)
Food and Drink - Summer 2011 - Orchard View Farms Inc. (Page 25)
Food and Drink - Summer 2011 - Orchard View Farms Inc. (Page 26)
Food and Drink - Summer 2011 - Grandma Hoerner’s (Page 27)
Food and Drink - Summer 2011 - Grandma Hoerner’s (Page 28)
Food and Drink - Summer 2011 - Grandma Hoerner’s (Page 29)
Food and Drink - Summer 2011 - Greencore USA Inc. (Page 30)
Food and Drink - Summer 2011 - Greencore USA Inc. (Page 31)
Food and Drink - Summer 2011 - Greencore USA Inc. (Page 32)
Food and Drink - Summer 2011 - FoodSwing Inc. (Page 33)
Food and Drink - Summer 2011 - FoodSwing Inc. (Page 34)
Food and Drink - Summer 2011 - FoodSwing Inc. (Page 35)
Food and Drink - Summer 2011 - Pecans.com (Page 36)
Food and Drink - Summer 2011 - Pecans.com (Page 37)
Food and Drink - Summer 2011 - Pecans.com (Page 38)
Food and Drink - Summer 2011 - RPE Inc. (Page 39)
Food and Drink - Summer 2011 - RPE Inc. (Page 40)
Food and Drink - Summer 2011 - RPE Inc. (Page 41)
Food and Drink - Summer 2011 - Dari Mart Stores Inc. (Page 42)
Food and Drink - Summer 2011 - Dari Mart Stores Inc. (Page 43)
Food and Drink - Summer 2011 - Idylwilde Farms (Page 44)
Food and Drink - Summer 2011 - Idylwilde Farms (Page 45)
Food and Drink - Summer 2011 - Kemin Industries Inc. (Page 46)
Food and Drink - Summer 2011 - Kemin Industries Inc. (Page 47)
Food and Drink - Summer 2011 - Olga’s Kitchen (Page 48)
Food and Drink - Summer 2011 - Olga’s Kitchen (Page 49)
Food and Drink - Summer 2011 - Distributors: How Green Can You Be? (Page 50)
Food and Drink - Summer 2011 - Distributors: How Green Can You Be? (Page 51)
Food and Drink - Summer 2011 - Kohl Wholesale (Page 52)
Food and Drink - Summer 2011 - Kohl Wholesale (Page 53)
Food and Drink - Summer 2011 - Kohl Wholesale (Page 54)
Food and Drink - Summer 2011 - Kohl Wholesale (Page 55)
Food and Drink - Summer 2011 - Kohl Wholesale (Page 56)
Food and Drink - Summer 2011 - Kohl Wholesale (Page 57)
Food and Drink - Summer 2011 - Nebraskaland (Page 58)
Food and Drink - Summer 2011 - Nebraskaland (Page 59)
Food and Drink - Summer 2011 - Nebraskaland (Page 60)
Food and Drink - Summer 2011 - Upper Lakes Foods Inc. (Page 61)
Food and Drink - Summer 2011 - Upper Lakes Foods Inc. (Page 62)
Food and Drink - Summer 2011 - Upper Lakes Foods Inc. (Page 63)
Food and Drink - Summer 2011 - B. Giambrone & Co. (Page 64)
Food and Drink - Summer 2011 - B. Giambrone & Co. (Page 65)
Food and Drink - Summer 2011 - Food Sales West (Page 66)
Food and Drink - Summer 2011 - Food Sales West (Page 67)
Food and Drink - Summer 2011 - Milne Fruit Products Inc. (Page 68)
Food and Drink - Summer 2011 - Milne Fruit Products Inc. (Page 69)
Food and Drink - Summer 2011 - Pellerito Foods (Page 70)
Food and Drink - Summer 2011 - Pellerito Foods (Page 71)
Food and Drink - Summer 2011 - PrimeSource Foodservice Equipment (Page 72)
Food and Drink - Summer 2011 - PrimeSource Foodservice Equipment (Page 73)
Food and Drink - Summer 2011 - Town & Country Foods (Page 74)
Food and Drink - Summer 2011 - Town & Country Foods (Page 75)
Food and Drink - Summer 2011 - Producers: The Industry Pitfall (Page 76)
Food and Drink - Summer 2011 - Producers: The Industry Pitfall (Page 77)
Food and Drink - Summer 2011 - Walker & Sons (Page 78)
Food and Drink - Summer 2011 - Walker & Sons (Page 79)
Food and Drink - Summer 2011 - Walker & Sons (Page 80)
Food and Drink - Summer 2011 - Bright Coop Inc. (Page 81)
Food and Drink - Summer 2011 - Bright Coop Inc. (Page 82)
Food and Drink - Summer 2011 - Bright Coop Inc. (Page 83)
Food and Drink - Summer 2011 - Covered Bridge Potato Chip Co. (Page 84)
Food and Drink - Summer 2011 - Covered Bridge Potato Chip Co. (Page 85)
Food and Drink - Summer 2011 - Route 11 Potato Chips (Page 86)
Food and Drink - Summer 2011 - Route 11 Potato Chips (Page 87)
Food and Drink - Summer 2011 - Royal Sausage Co. (Page 88)
Food and Drink - Summer 2011 - Royal Sausage Co. (Page 89)
Food and Drink - Summer 2011 - Restaurants: Values Drive Sales (Page 90)
Food and Drink - Summer 2011 - Restaurants: Values Drive Sales (Page 91)
Food and Drink - Summer 2011 - El Meson Sandwiches (Page 92)
Food and Drink - Summer 2011 - El Meson Sandwiches (Page 93)
Food and Drink - Summer 2011 - El Meson Sandwiches (Page 94)
Food and Drink - Summer 2011 - El Meson Sandwiches (Page 95)
Food and Drink - Summer 2011 - El Meson Sandwiches (Page 96)
Food and Drink - Summer 2011 - El Meson Sandwiches (Page 97)
Food and Drink - Summer 2011 - El Meson Sandwiches (Page 98)
Food and Drink - Summer 2011 - Peter Piper Pizza (Page 99)
Food and Drink - Summer 2011 - Peter Piper Pizza (Page 100)
Food and Drink - Summer 2011 - Peter Piper Pizza (Page 101)
Food and Drink - Summer 2011 - Retailers: The Unwelcomed Guest (Page 102)
Food and Drink - Summer 2011 - Retailers: The Unwelcomed Guest (Page 103)
Food and Drink - Summer 2011 - Retailers: The Unwelcomed Guest (Page 104)
Food and Drink - Summer 2011 - Retailers: The Unwelcomed Guest (Page 105)
Food and Drink - Summer 2011 - Arabica Coffeehouse (Page 106)
Food and Drink - Summer 2011 - Arabica Coffeehouse (Page 107)
Food and Drink - Summer 2011 - Kolache Factory (Page 108)
Food and Drink - Summer 2011 - Kolache Factory (Page 109)
Food and Drink - Summer 2011 - Reasor’s (Page 110)
Food and Drink - Summer 2011 - Reasor’s (Page 111)
Food and Drink - Summer 2011 - Three Things (Page 112)
Food and Drink - Summer 2011 - Three Things (Page Cover3)
Food and Drink - Summer 2011 - Three Things (Page Cover4)
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