Last year, we wrote about a challenge that NAD had initiated against various green claims made by the American Beverage Association (or “ABA”). NAD found that several of ABA’s claims – including claims that “our bottles are made to be remade” and “we’re carefully designing our bottles to be 100% recyclable” – were substantiated, but had concerns with others. ABA appealed the decision. Last week, NARB issued its own decision, siding with NAD. Here are some highlights.

Although NAD determined that certain bottles could be recycled in at least 60% of 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 could 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.”

NARB agreed, noting that while ABA may have intended to explain the potential for bottles to be recycled, the ad went beyond that, conflating current recycling practices and outcomes with aspirational ones. Therefore, NARB recommended that AB modify its claims to better clarify that its statements relate to aspirational goals. Similarly, NARB stated that the ads shouldn’t suggest the industry is currently making significant use of recycled bottles or reducing plastic, if that isn’t the case.

Aspirational green claims are a big topic at NAD. Exactly what companies need to do to support these types of claims is still unclear, especially because some courts have taken different positions from NAD and because we’re still waiting to see if the FTC addresses this issue in the revised Green Guides. In this case, though, the main lesson may be companies need to ensure that they clearly differentiate what they’ve already achieved and what they hope to achieve.

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