Keurig Green Mountain's coffee machines brew single servings of coffee using K-Cup Pods, which are made out of plastic.  For many years now, Keurig has made its K-Cups from recyclable plastic.  Packaging for the product promoted that the product is recyclable and explained to consumers how to do it, which involves first peeling off of the foil and then emptying the used coffee grounds out of the cup.  The packaging also included qualifying language as well, such as "Check locally to recycle empty cup."  Many recycling centers don't accept the K-Cups for recycling, however.  And, apparently, the recycling centers that do accept K-Cups only successfully recycle them 30% of the time, due to their size, their tendency to become crushed by recycling machines, residue from the foil tops, and for other reasons.  

So, you make a product that is made from recyclable plastic, but due to the nature of the specific product, recycling facilities don't always accept it or, if they do, they don't always successfully recycle it.  Can you still advertise the product as recyclable?  That was the issue in a recent lawsuit in federal court in Massachusetts. 

Under Massachusetts law, in order to establish a false advertising claim, a plaintiff must prove a deceptive act or practice on the part of the marketer, an injury or loss suffered by the consumer, and a causal connection between the deceptive act or practice and the injury.  For an act or practice to be "deceptive," there must be a misrepresentation, practice, or omission that is likely to mislead consumers, consumers must be interpreting the message reasonably under the circumstances, and the misleading effect must be material, which means that it is likely to affect consumers' conduct or decision with respect to the product. 

Here, the court held -- at least for purposes of a motion to dismiss -- that the plaintiff plausibly alleged that Keurig's advertising misled consumers.  In light of the plaintiff's allegations that most recycling centers don't accept K-Cups for recycling and that only 30% of K-Cups are recycled at the facilities that do accept them, the court said that Keurig's "check locally" statement may not be sufficient to prevent consumer deception. 

In coming to this conclusion, the court relied heavily on the Federal Trade Commission's Guides for the Use of Environmental Marketing Claims, which it repeatedly and incorrectly refers to as "regulations."  The FTC's "Green Guides," as they are commonly called, are non-binding, advisory guidance from the FTC about the types of environmental marketing claims that are deceptive under Section 5 of the FTC Act.  According to the Green Guides, "A product or package should not be marketed as recyclable unless it can be collected, separated, or otherwise recovered from the waste stream through an established recycling program for reuse or use in manufacturing or assembling another item."  If recycling facilities are limited, the FTC says it's permissible to qualify the claim to communicate the limited availability.  For example, according to the Green Guides, if recycling facilities are only available to a few consumers, the FTC recommends that marketers use a disclaimer like, "This product is recyclable only in the few communities that have appropriate recycling facilities."  The Green Guides also say that, "An item that is made from recyclable material, but, because of its shape, size, or some other attribute, is not accepted in recycling programs, should not be marketed as recyclable."  

What does the FTC's guidance mean?  If you're reading it as saying that the FTC is actually prohibiting marketers from making what can be seen as truthful "recyclable" claims, you're not wrong.  The FTC's position here is that it's not enough that the product is, in fact, recyclable.  The FTC also wants marketers to ensure that substantial numbers of facilities will accept the product for recycling and that, once they accept it, they will actually recycle it.  If the marketer isn't able to demonstrate that (and consider the practical challenges in doing so), then the FTC says that the marketer should include strong disclaimers that explains the limitations on the recyclability of the product. 

Here, Keurig did make a qualified claim, clearly recognizing that there were limitations on the product's recyclability.  This case may turn out to be nothing more than a question of there's any meaningful difference between a disclaimer that says "Check locally to recycle empty cup" and one that says, "This product is recyclable only in the few communities that have appropriate recycling facilities."

Downing v. Keurig Green Mountain, 2021 WL 2403811 (D. Mass. 2021).