A recent decision out of the Northern District of Illinois adds a new entry to the lexicon of "recyclability," straying from the FTC's Green Guides in the process.

The FTC's Guides for the Use of Environmental Marketing Claims (or "Green Guides") say that marketers cannot make an unqualified "recyclable" claim unless facilities that can recycle the product are available to a substantial majority of consumers or communities where the item is sold. If they're available to less than a substantial majority (which the FTC says means less than 60%), then the FTC says marketers should qualify the claim. However, in a recent case, one court rejected the FTC's view and found that a "recyclable" claim does not communicate a claim about how likely it is that the product will be recycled, but only that it is capable of being recycled.

In Curtis v. 7-Eleven, plaintiff Devon Curtis alleged, under Illinois's Consumer Fraud and Deceptive Business Practices Act, that 7-Eleven "deceptively or unfairly places the term 'recyclable' on . . . items despite their un-recyclability." Curtis claimed (relying on the Green Guides), that certain products she purchased (including foam plates, foam cups, party cups, and freezer bags) were not actually recyclable because, while "the products are made out of plastics that could be recycled . . . in reality, the products aren't recycled that often because few recycling facilities take that type of plastic."

Notably, the court acknowledged and rejected Curtis's reliance on the Green Guides, stating:

"It is not clear how useful those Green Guides are when evaluating the views of a reasonable consumer at a convenience store. Your average consumer at 7-Eleven probably doesn't have the FTC's policy statements at his or her fingertips when picking up a bag of foam plates for the backyard BBQ... People buying red party cups at 7-Eleven are more likely to be thinking about beer pong than the FTC's consumer guidelines."

In rejecting Curtis's arguments, the court determined that 7-Eleven did not make any representations about the likelihood that the products would be recycled, stating that the term "recyclable” means “can be recycled," not "will be recycled, "probably will be recycled," or “easy to recycle," and that the products were, in fact, capable of being recycled.

Importantly, Illinois's Consumer Fraud and Deceptive Business Practices Act broadly prohibits unfair or deceptive acts or practices and does not include a specific provision addressing environmental marketing claims, or specific requirements for making recyclability claims (as some other states do). But, it does state that "in construing this section consideration shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to Section 5 (a) of the Federal Trade Commission Act."  But ultimately, under Illinois's state law, a practice is considered deceptive if it "creates a likelihood of deception or has the capacity to deceive a reasonable consumer.” And here, the court found that it would not have been reasonable for consumers to expect that "recyclable" communicated a "guarantee that there are local facilities that recycle that type of plastic."

To summarize the court's feelings on Curtis's arguments in a single sentence from the opinion: "True, maybe consumers have unreasonable expectations about how often products are recycled. But that's not on 7-Eleven."

(Note that Curtis separately alleged that the products also lacked necessary RIC markers which are required in order for recycling facilities to properly recycle the products. The court allowed Curtis's complaint to proceed solely with respect to such claims.)

Curtis v. 7-Eleven, Inc., 2022 WL 4182384 (N.D. Ill. Sept. 13, 2022).