Overview
As with many areas of compliance, when making a “compostable” claim, both state law and federal law are in play. Using California as an example, California law has the approach of focusing on whether the product meets specific testing standards. Federal law approaches “compostable” claims from a more holistic and less technical perspective, generally requiring that “compostable” claims not be misrepresentations, while specifying certain qualifications to avoid having the claim be considered misleading.
Both federal and California law make a distinction between products that can be “home composted” and those that require an industrial facility. California has a specific testing standard for home composting, which differs from the standard that must be met if the claim is for “composting” generally.
Federal law is different, requiring that a qualification be made if the item cannot be home composted, regardless of whether the marketing claim mentions “home composting.” Example 3 at 16 CFR Part 260.7 makes this clear, stating that if a product will not break down into usable compost in a home compost pile or device the “manufacturer should clearly and prominently disclose that the package is not suitable for home composting.” Federal regulations also explicitly require that “[t]o avoid deception about the limited availability of municipal or institutional composting facilities, a marketer should clearly and prominently qualify compostable claims if such facilities are not available to a substantial majority of consumers or communities where the item is sold.” Since in today’s internet age products have national reach, it is fair to say that if the product is not home compostable, a qualifier should be included with the marketing claim. Example 4 at 16 CFR Part 260.7, suggests language for that qualification as “[a]appropriate facilities may not exist in your area.”
If that was not onerous enough, an FTC opinion introduced an entirely additional factor into the mix— what the product is used for. The FTC issued an opinion that no pet waste bag can be called compostable, because once pet waste is placed in the bag, the bag can’t be composted. So its not just a question of whether the product tests to the relevant standard, and includes any required disclaimers, it’s a question of whether the product can be composted after it is used as intended. Or put more narrowly, if you do put dog doo doo in a bag, it can’t be called compostable, no matter what the bag’s made of.
