By Charles Simmons
Presented at the 19th Annual International Anodizing Conference & Exposition, October 5-7, 2010, Montreal, Quebec, Canada. For more information, please visit Anodizing.org
Product manufacturers naturally want to say good things about their product. Current marketing trends emphasize environmentally beneficial attributes of a product, not just to identify the manufacturer as a good corporate citizen, but also as an inducement for the consumer to purchase the product.
“Consumers” include government procurement officers, architects, and other manufacturers relying on “green” components to make their own “green” product. Not all speech is “free,” and commercial speech has its limits. The U.S. Federal Trade Commission puts limits on the types of environmental marketing claims that can be made without being false or misleading. Other potential liabilities can arise under state statutes regarding unfair competition, false advertising, fraud or unjust enrichment.
Let’s take a look at current issues in green marketing, with particular emphasis on the types of claims seen for aluminum products.
There is an inherent understanding that the anodizing industry and anodized aluminum products are environmentally superior to other finished metals and market forces are favoring products that are least harmful to the environment. However, the laws governing deceptive trade practices limit environmental marketing claims to those which can be substantiated.
The FTC Guides provide a useful template for avoiding problematic environmental claims. The key to avoiding allegations of false and misleading environmental claims is substantiation of the claim by competent and credible evidence. A “reasonable basis” for the claims is required. FTC does not require any particular methodology be used to establish that basis – it just needs to be reasonable.
Much evidence of the environmental attributes of anodized aluminum and sulfuric acid anodizing already exists or can be readily assembled. It is recommended that companies making environmental claims consider how those claims fit within the above discussion of the FTC Guides, and consider whether such claims can be substantiated.
The following claims were found during an Internet survey of aluminum products manufacturers’ and aluminum trade associations’ web sites during September, 2010. Consider how these claims might be viewed under the FTC Guides.
1) Aluminum as an “energy bank”—aluminum container manufacturer:
Environmental concerns foster recognition of aluminum products as an "energy bank". The electrical energy embedded in aluminum can be considered and "energy bank" because aluminum products can be endlessly remanufactured with only 5% of the energy and emission originally required to produce the virgin product. From a sustainability viewpoint aluminum's high life-cycle value and recyclability make it the best option for retaining this "banked" energy and should be promoted vigorously.
Questions: Substantiated? Data? The “energy bank” claim is novel and attractive; it is plausible that, depending on the recycled content of the aluminum product, calculations could quantify how much energy is saved (“banked”) by using secondary aluminum in the product.
2) Environmental performance:
The reduction in toxic air releases has been one of the North American rolling group's top priorities for the last decade. Programs have been implemented to reduce toxic air releases as quantified in the EPA's (US Environmental Protection Agency) Toxic Release Inventory and Canada's NPRI since the late 1980s. The result is a 70% reduction in toxic air releases since 1989.
Comment: Substantiation is key. Very likely emissions data are documented and reported to environmental authorities, and therefore substantiated and performance is verifiable.
3) General environmental claims:
- Aluminum is a durable and sustainable metal: Two-thirds of the aluminum ever produced is still in use today.
- Recovering aluminum for recycling saves money and dramatically reduces energy consumption. The aluminum container recycling process saves 92% of the energy needed to produce aluminum from bauxite ore, according to EPA's Waste Reduction Model (WARM).
- Of the most common recyclable materials aluminum, glass, paper, metals, corrugated paperboard and plastics aluminum is the only material that is infinitely recyclable, 100% recyclable, and pays for itself.
- Recycled aluminum and virgin aluminum are inherently the same.
4) Greenhouse gas claims:
- Use of aluminium products helps limit greenhouse gases emissions: aluminium products save energy because they are strong yet light. For the transport sector, the reduced weight offered by aluminium improves fuel economy. Moreover, aluminium increases payloads within maximum truck weights and reduces the number of trips necessary. For an average family car, each 100 kg weight saving from the use of aluminium amounts to a fuel saving in the range of 0.4-0.6 litre per 100 km.
Comment: Substantiation? Are qualifications needed? What percentage of motor carriers are made of aluminum?
5) Recyclable claims:
- Aluminum is notable for its ability to be recycled indefinitely owing to its high intrinsic value and the widespread industrial infrastructure available for remelt and repurification of the metal. Recycling aluminum uses only a fraction of the energy incurred in manufacture of the primary product.
Comment: Substantiation; use of symbol.
6) Certification/approval claims:
- LEED (Leadership in Energy and Environmental Design) is a topic that an increasing number of our Customers have asked about. We are able to offer material and services that may increase your opportunity on LEED projects or help with your own LEED products. Availability of quality, recycled aluminum extrusions and managing our process responsibly is important for these guidelines.
Comment: Breach of contract exposure?
7) Health and safety claims:
- Health and Safety. Anodizing is a safe process that is not harmful to human health. An anodized finish is chemically stable, will not decompose; is non-toxic; and is heat-resistant to the melting point of aluminum (1,221 degrees F.) Since the anodizing process is a reinforcement of a naturally occurring oxide process, it is non-hazardous and produces no harmful or dangerous by-products.
Comment: Is sulfuric / nitric acid safe? Does this claim overstate health and safety?
8. General environmental claims:
- Environmental Safety - Anodizing is a safe process that is not harmful to human health; it has little environmental impact and anodized aluminum is fully recyclable without the environmental risks associated with organic coatings.
Comment: Overstatement? Truthful? Qualifications needed?
Charles T. Simmons is an attorney in Washington D.C. He can be reached at email@example.com.