In a recent National Advertising Division proceeding, The Procter & Gamble Company challenged S.C. Johnson & Son, Inc.'s claim that its Ecover dish soap was “biodegradable.” According to P&G, S.C. Johnson's unqualified “biodegradable” claim required S.C. Johnson to substantiate that the entire product, packaging included, was biodegradable. P&G also challenged S.C. Johnson's “non-toxic” and “100% natural fragrance” claims regarding its Ecover dish soap. S.C. Johnson represented that it had discontinued the latter claims and they were therefore not reviewed by the NAD.

P&G did not challenge S.C. Johnson's evidence substantiating the biodegradability of its Ecover dish soap. Moreover, S.C. Johnson did not claim that its packaging for the same was biodegradable. Instead, contrary to P&G's contention, S.C. Johnson argued that “no reasonable consumer” would interpret the “biodegradable” claim to apply to the product packaging.

Absent consumer survey evidence, the NAD “step[ped] into the shoes of the consumer” to ascertain what messages were implied from the challenged claim. The NAD considered guidance from the FTC. According to the NAD, the FTC Green Guides provide that “biodegradable claims should be ‘qualified clearly and prominently to the extent necessary to avoid deception about . . . [t]he product's or package's ability to degrade in the environment where it is customarily disposed.'” The NAD cited to an FTC example indicating that an unqualified biodegradable claim for shampoo would not be misleading if it “makes clear that only the shampoo, and not the bottle, is biodegradable.” 

With this guidance in mind, the NAD concluded that S.C. Johnson's unqualified biodegradable claim regarding its Ecover dish soap was misleading and recommended that it be modified to “make clear” that the claim applied only to the soap and not its packaging. Originally, the Ecover dish soap label included the claims “Non-toxic and biodegradable.” But given S.C. Johnson discontinued the use of “non-toxic,” NAD found that the “biodegradable” claim was left with “nothing in close proximity” to “limit the claim to the soap”—notwithstanding other claims on the label. Specifically, NAD found that the fish illustration could refer to “the dangers that non-biodegradable soaps pose to aquatic life” just as much as it could refer to “harms caused when plastics and other waste” are disposed in our waterways. Similarly, the NAD found that the use of “biodegradable formula” and an explanatory statement elsewhere on the packaging were “ineffective to qualify a statement on the front of the package.”

The case is S.C. Johnson & Son, Inc. v. The Procter & Gamble Co., Case No. 6349 (NAD February 18, 2020). 

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