NAD Finds Berry Can Support Recyclability, Superiority Claims for its ‘Versalite’ Cups Following Dart Container Challenge

New York, NY – May 7,  2015 – The National Advertising Division has determined that Berry Plastics Corporation can support properly qualified comparative superiority claims for the company’s Versalite polypropylene cups.

NAD is an investigative unit of the advertising industry’s system of self-regulation. It is administered by the Council of Better Business Bureaus.

Berry’s advertising claims were challenged by Dart Container Corporation,  a competing manufacturer of single-use foodservice products.

Dart challenged express claims that included:

  • Versalite cups are “[e]asy to recycle. More than 61% of Americans have access to recycle polypropylene, including many communities accepting #5 plastics curbside.”
  • “The Versalite cup is fully recyclable, which may help to lower your company’s overall carbon footprint.”
  • “A disposable cup that is fully recyclable.”
  • Versalite is “environmentally responsible.”
  • “Versalite is the ENVIRONMENTALLY RESPONSIBLE alternative to today’s to-go cups.”
  • “Berry Plastics has created a technology that blends superior performance with environmental responsibility . . .”

NAD also considered whether the advertising at issue implied that Versalite cups are environmentally superior to other single-use food service cups.

The challenger took issue with Berry’s unqualified claims that Versalite cups are “fully recyclable” and argued that the Federal Trade Commission (FTC) only permits marketers to make unqualified recycling claims on their materials when recycling facilities are available to 60 percent of consumers or communities where the item is sold.  As the advertiser noted, the FTC also holds that a product “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.”

The challenger argued that Berry had not met the recyclability criteria set by the FTC because it has not provided sufficient evidence that facilities that recycle the Versalite material are available to more than 60 percent of consumers,  and that Versalite cups are collected and actually recycled.  Dart contended that Versalite cups are not recyclable polypropylene, but rather expanded polypropylene – a foam form of polypropylene that does not recycle like standard polypropylene.  According to the challenger, because the Versalite material does not qualify as “non-bottle rigid polypropylene,” sorters at a recycling facility would become aware of Versalite’s unsuitable properties during the sorting process and ultimately discard the material to a landfill

The key issue before NAD was whether Berry reasonably established that its Versalite cups would be treated as “non-bottle rigid poly propylene” in the real-world recycling stream where the Versalite items are marketed or sold.  If so, then Berry would meet the threshold requirement for making unqualified recyclability claims under the FTC Green Guides.

As evidence that Versalite meets the definition of a “rigid” polypropylene, the advertiser submitted to NAD physical specimens of #5 poly propylene cups, including Versalite cups, rigidity testing results conducted on Versalite, industry definitions of Rigid Plastics, and Berry’s confidential patent application.

As support for its unqualified recyclable claims, the advertiser relied on a report by Moore Recycling Associates which stated that 61.1 percent of the U.S. population had access to facilities that would recycle Non-Bottle Rigid Polypropylene, and recycling verification testing that showed Versalite would be sorted like standard polypropylene products received in the recycling stream.  The advertiser also relied on evidence that Versalite behaves like standard polypropylene for the purposes of being converted into reusable materials. NAD determined that the advertiser established a reasonable basis for its unqualified recyclable claims.

NAD further determined that the comparative superiority claim that “A disposable cup that is fully recyclable.  Versalite is the ENVIRONMENTALLY RESPONSIBLE alternative to today’s to-go cups,” and the advertiser’s YouTube video which claims that Versalite is “more environmentally responsible because it’s made of #5 polypropylene” followed by a discussion of the product’s recyclability, are properly qualified to indicate the nature of the environmental benefit being asserted.

NAD recommended that the phrase “Berry Plastics has created a technology that blends superior performance with environmental responsibility,” which appears on a web page standing alone, be modified to more clearly indicate, in close proximity to the claim of “environmental responsibility,” those attributes of Versalite that make it an environmentally responsible product.

Berry, in its advertiser’s statement, said the company “has already taken steps to implement NAD’s recommendation as to the single web page identified and to clarify” the “environmental responsibility” reference in the statement.