Claiming Biodegradablility or Compostability – Patents, Labeling, and the FTC

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As reported here earlier this week, the Federal Trade Commission (FTC) has revised its Green Guides, guidance to marketers for the use of certain terms so as to prevent deception in the marketplace. While many topics covered in the Green Guides are potential issues for manufacturers and retailers and how they market their products, one of the more interesting changes to the Guides are the revised definitions of “degradable” and “compostable” and how they will apply to an emerging plastics market that is producing more packaging and products that degrade over time and how these definitions may be used in patent claims.

As noted in Alexander H. Tullo’s article, Old Plastics, Fresh Dirt (Chemical & Engineering News, March 19, 2012), “[i]n the plastics industry, terms like ‘biodegradable’ and ‘compostable’ are thrown around loosely” because, as a completely theoretical exercise, if you wait long enough everything will biodegrade.  In an attempt to reign in the use of these terms, the plastics industry uses specifications published by the ASTM, and specifically for biodegradation, ASTM D6400.  However, in order to comply with the new FTC Guides, the use of these terms when selling products or packaging needs to be limited or appropriately qualified so as not to be deceptive.  For example, qualification is generally necessary for a statement of degradability unless it has “competent and reliable scientific evidence that the entire item will completely break down and return to nature (i.e., decompose into elements found in nature) within a reasonably short period of time after customary disposal.” Sec. 260.8.

Similarly, in order for a material to be marketed as compostable, the marketer should possess competent and reliable scientific evidence showing that “all the materials in the product or package will break down into, or otherwise become a part of, usable compost (e.g., soil-conditioning material, mulch) in a safe and timely manner in an appropriate composting program or facility, or in a home compost pile or device.”  In this case “timely manner” means “in approximately the same time as the materials with which it is composted.”

Clearly, plastics manufacturers and retailers will want to comport their current marketing practices with the guidance put forth by the FTC.  In many cases, this means putting accurate and complete qualifications regarding the limitations on degradability and compostability associated with the product and/or packaging.  For example, a biodegradable plastic fork may not be entitled to an unqualified claim of biodegradability if the likely place the fork will end up is a landfill, where the fork is unlikely to degrade.  A possible qualification for the fork could be: This product will biodegrade in a commercial composting facility, which may or may not be available in your area.

Interestingly, however, these new definitions may provide an additional avenue for claiming materials in patents that meet the unqualified definitions under the Guides.  For example, there are several patents related to biodegradable copolyesters having certain compositions and methods of producing them.  However, I could envision another way of patenting the material that would incorporate the definition proposed in the Guides, e.g., biodegradable polysters could be implicitly included as a material that is used to produce a container that is designed so that it meets the definition of biodegradability without qualification (maybe the packaging has a structure that allows it to come apart easily or separate upon compression so as to expose a larger surface area to necessary elements that quicken degradation).  In this example, while your patent would be limited by the container structure, it wouldn’t necessarily be limited by the type of biodegradable polyster that was used to make the container.

As I’ve written before, regulations and rules can provide opportunities for new innovations; possibly the Green Guides have opened yet another doorway.