For textiles, the law requires manufacturers to provide retailers and distributors with a certificate of compliance stating that the product does not contain any “regulated PFAS,” which are defined as PFAS “that have a functional or technical effect in the product.” Further, the ban applies to PFAS present in textile articles present above certain minimum thresholds, as measured by total organic fluorine content: 100 parts per million as of January 1, 2025, with a reduction to 50 parts per million in 2027.

The law also requires a manufacturer to use the “least toxic alternative” when replacing regulated PFAS in textile articles. The term “least toxic alternative” is not defined in the legislation but presumably envisions a process similar to the “Alternatives Analysis” required for manufacturers of products subject to the state’s Safer Consumer Products (SCP) program.

Notably, the PFAS prohibition is delayed until 2028 for “outdoor apparel for severe wet conditions.” Such products, however, must be clearly labeled as “Containing PFAS chemicals” starting January 1, 2025. Full exemptions from the ban are provided for “personal protective equipment” (PPE) and “clothing items for exclusive use by the United States military.” Carpets and rugs are excluded from the ban as they are currently regulated under the SCP program.

The cosmetics ban extends a previous California law prohibiting 13 specific PFAS chemicals to all of the thousands of different PFAS substances in existence. No minimum PFAS content threshold is provided in the law, which may present a challenge to companies seeking to demonstrate that PFAS have not been intentionally added to a cosmetics product and that any amount identified is from contamination in raw materials, water or other unknown sources.

While the California ban is among the most aggressive legal prohibitions related to PFAS in products, the scope of the ban does not go as far as recent legislation adopted in Maine, which applies to all products containing intentionally added PFAS (unless for “unavoidable uses” which have yet to be defined). The California prohibition, however, goes into effect much sooner (starting in 2025) than the 2030 ban in Maine. (Maine has banned PFAS in carpets and rugs as of 2023.)

Governor Newsom also declined to further extend California’s PFAS regulations by vetoing legislation that would have required consumer product manufacturers to submit annual reports on intentionally added PFAS in all products and product components beginning in 2026. In 2021, Maine adopted a similar reporting requirement that goes into effect January 1, 2023.

With the final adoption of the California PFAS prohibitions, all eyes now turn to New York, where Governor Hochul is weighing signature of legislation passed earlier this year to ban intentionally added PFAS in apparel starting in 2024.

Find out more on PFAS on our Kelley Green blog.

A new paper from Northeastern University’s PFAS Project Lab and researchers from the National Institute of Environmental Health Sciences (NIEHS) reaches the sobering conclusion that over 57,000 sites in the U.S. have “presumptive contamination” from per- and polyfluoroalkyl substances (“PFAS”). Even more sobering is the authors’ assertion that that number is almost certainly a dramatic underestimation of the number of PFAS-contaminated sites, given limited data availability and the conservative mapping methodology employed.

Released on October 11th, the paper, “Presumptive Contamination: A New Approach to PFAS Contamination Based on Likely Sources” (published in Environmental Science & Technology Letters), aims to fill existing data gaps by positing that "[I]n the absence of high-quality data to the contrary, PFAS contamination is probable near facilities known to produce, use, and/or release PFAS, and to protect public health, the existence of PFAS in these locations should be presumed until high-quality testing data is available."

Building on existing research, test data, and environmental reporting, the authors contend that PFAS contamination can be presumed at three types of facilities:

(1) Fluorinated aqueous film-forming foam (“AFFF”) discharge sites: military sites, airports, firefighting training sites, and “high-hazard flammable liquid fire” sites such as those associated with oil and gas extraction, petroleum refineries, bulk storage facilities, and chemical manufacturing, as well as railroad crashes.

(2) Industrial facilities that produce or use PFAS: Identified largely through the limited scope of facilities that reported PFAS use under the U.S. Environmental Protection Agency (“EPA”) Toxic Release Inventory (“TRI”) program.

(3) Sites related to PFAS-containing waste: Including PFAS-contaminated effluent and sludge from wastewater treatment plants (“WWTPs”), as well as solid waste disposal sites.

Using mapping technology, the study identified 57,412 sites of “presumptive PFAS contamination” in the United States, including 49,145 industrial facilities, 4,255 WWTPs, 3,493 military sites, and 519 major airports. The sites are identified in the publicly available PFAS Contamination Site and Community Resources map, available at www.pfasproject.com.

The authors note that “State and federal agencies can use a presumptive contamination approach to identify and prioritize locations for monitoring, regulation, and remediation.”

The information from this study is particularly notable on the heels of EPA’s August 2022 proposal to add two PFAS chemicals (PFOA and PFOS) to the list of hazardous substances under the Superfund program. Clearly, the magnitude of PFAS contamination in the United States is extraordinary, and raises the potential for thousands of clean up actions (and regulatory enforcement) at sites across the country.

Find out more on PFAS on our Kelley Green blog.

Need Help Talking To Dad About Milk?

The UK’s Advertising Standards Authority (ASA) recently investigated advertising by Oatly for advertisements that allegedly overstated the environmental benefits of the popular oat-based beverage. Here’s an example:

The first TV ad, seen on January 16 2021, featured a man sneaking into his home and putting a bottle of milk in the fridge. He was interrupted by his son who said, “What have we here? Cow’s milk? Really?” Large, on-screen text stated “NEED HELP TALKING TO DAD ABOUT MILK?”. Smaller text at the bottom of the screen stated “Oatly generates 73% less CO2e vs. milk, calculated from grower to grocer. To verify see www.oatly.com/helpdad”.

The ASA found the “Need Help Talking to Dad About Milk” ad to be misleading not because the life cycle assessment conducted to support the claims was not sufficiently robust to support a benefit. Rather, the substantiation was limited to Oatly’s Barista Edition but the ad and the disclosure could reasonably be understood to apply to all Oatly products. Because of this gap, the ASA found the ads misleading.

What’s the takeaway? The ASA’s decision, which also covers four other ads, is worth a read by any food company considering how to substantiate environmental claims. There are valuable insights from a technical perspective, including detailed discussion of life cycle analyses for Oatly’s product as well as the dairy, meat, and transportation industries.

There is also a focus on less complex but equally important features for food marketers – such as the consumer understanding of what is included in references to the “meat industry” or the “dairy industry”. Because consumers could interpret “dairy and meat” more narrowly than how Oatly did, the ASA found the claim "Today, more than 25% of the world's greenhouse gases are generated by the food industry, and meat and dairy account for more than half of that" to be misleading.

Stepping back, the biggest issue with Oatly’s advertising wasn’t that the company didn’t have robust substantiation for some claims. It appears that they did. The claims reasonably conveyed didn’t match the limitations and definitions in their substantiation, though, and this wasn’t made clear to consumers.

Recently lobbying group PoliticallyInFashion partnered with 40 organizations and individuals to submit a letter to the FTC asking the agency to conduct a comprehensive review of the Green Guides. Citing “an exponential growth in sustainability claims by businesses,” the group has asked the FTC to provide more guidance on use of the terms “organic” and “sustainable.” The Commission declined to provide specific definitions for either term when the agency last updated the Guides in 2012. PoliticallyInFashion suggests that retailers’ increased focus on sustainability claims, and consumers’ increased interest in retailers’ environmental commitments, warrants additional guidance on the terms. The FTC is scheduled to undertake a review of the Green Guides in 2022.

The U.S., however, is not the only country where sustainability claims are in the spotlight. Regulators across the globe are closely scrutinizing clothing retailers’ sustainability claims. In March, the Netherlands Authority for Consumers and Markets (“ACM”) sent letters to more than 70 clothing companies flagging potentially misleading claims. As one example, ACM advised a retailer that offers consumers the online option to filter items by “sustainability” to explain what makes the clothing sustainable. Director Edwin van Houten explained the importance of action in the clothing industry “because, for consumers, the aspect of sustainability plays a major role in their purchase decisions.”

As sustainability continues to influence consumers’ purchasing decisions, consumer protection regulators will seek to ensure that these claims are truthful. Especially because the FTC has yet to define the term “sustainable,” if your marketing team wants to make claims about product sustainability, having accurate and up-to-date substantiation that provides a reasonable basis for the claim is essential. For more information about sustainability claims, or other green marketing issues, see our blog archives or visit our Advertising and Privacy Law Resource Center.

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• Specify that “internet sales” include purchases through mobile device applications;

• Clarify that the option to provide a warning “by electronic device or process” is intended to apply to in-store product purchases at a physical retail location, and that this provision is unrelated to the requirements for warnings provided online for internet purchases;

• Make clear that the tailored warnings provided in the regulations for specific products (such as for food, alcoholic beverages, and furniture) apply to internet and catalog sales; and

• Expressly state that the requirement to provide warnings in alternate/foreign languages applies to the tailored product-specific warnings.

In September 2020, after reviewing feedback on the rulemaking, OEHHA announced that it intended to withdraw the proposed clarifications. Now, the agency has released its final determination and response to comments document in which it explains that the withdrawal was precipitated by stakeholder comments that the supposed “clarifications” in fact represented a “wholesale change” to “the existing safe harbor warning for almost every consumer product.” OEHHA objected to commenters’ characterization of the proposed revisions, particularly the contention that the “current safe harbor regulations do not require businesses selling online to provide both a website warning and a warning on or with the same product.” In OEHHA’s view:

Websites and smart phones can be a part of a safe harbor warning method, but neither are a standalone safe harbor warning method.

With regard to alcohol sales, OEHHA finalized a series of changes intended to codify the terms of a settlement stemming from the California Attorney General’s enforcement action against online sellers of alcoholic beverages. The new provisions include a requirement that Prop 65 warnings provided on-line or in catalogs also must be “provided to the purchaser or delivery recipient prior to or contemporaneously with the delivery of the product.” Such warnings “must be readable and conspicuous to the recipient prior to consumption of the alcoholic beverages,” and must be provided (1) on or in the shipping container or delivery package, or (2) delivered by email or text message as part of the electronic receipt or confirmation of the purchase. These regulations go into effect April 1, 2021.

It is important to remember that the “safe harbor” warning regulations are not mandatory, but, rather, prescribe warning text and methods that are considered de facto compliant. Businesses can use other means of communicating a warning, or different text, but, if so, they run the risk of a plaintiff challenging the sufficiency of the warning as “clear and reasonable.”

Further information is available at OEHHA’s website.

Find out more on Prop 65 on our Kelley Green blog.

When we posted about a $9.3 million FTC settlement involving the Mail Order Rule, many people commented that they had never heard of that Rule, and wondered what else they might be missing.

In fact, the FTC has more than 50 Rules and Guides. Don’t let that number scare you – many of these rules are very narrow and wouldn’t apply to most of our readers. For example, you probably don’t have to worry about the rule that regulates power output claims for amplifiers used in home entertainment products or the rule that requires certain disclosures when selling funeral goods or services. But odds are that there are a number of Rules and Guides that do apply to you.

On the latest episode of the Ad Law Access Podcast, Gonzalo Mon walks you through six FTC Rules and Guides that you should know.

Listen on Apple, Spotify, Google Podcasts, SoundCloud or wherever you get your podcasts.

For more information on the FTC and other topics, visit:

• Top FTC Rules and Guides You Should Keep in Mind
• Kelley Drye’s Advertising Law Practice Page
• Advertising and Privacy Law Resource Center
• Ad Law Access Blog
• Ad Law News and Views Newsletter

COVID-19 has brought a proliferation of products claiming to kill or otherwise inhibit viruses, bacteria and other germs. These products, before they can be legally sold, are heavily regulated by the U.S. Environmental Protection Agency (EPA), Food and Drug Administration (FDA), and sometimes both. Major enforcement actions are pending against companies making illegal claims or selling unregistered products. Meanwhile, the FTC regulates advertising of many sanitizing products and the agency has pursued enforcement on companies that overstate their products’ germ-killing performance.

Please join us for a webinar covering the basics of germ killing and related product claims.

Discussion topics include:

• The regulatory landscape: Who regulates what – EPA, FDA and FTC jurisdiction and requirements
• What can you say and when can you say it
• Potential liability and enforcement considerations
• What to do if you receive a warning letter or other enforcement action

To view the presentation slides, click here.

To view the webinar recording, click here.

Subscribe to our Ad Law News and Views newsletter to receive information on our next round of webinars and to stay current on advertising and privacy matters.

Visit the Advertising and Privacy Law Resource Center for additional information for additional information, past webinars, and educational materials.

Accordingly, EPA recently issued an advisory that cautions:

Please note that ozone generators, UV lights and other pesticide devices may not be able to make claims against coronavirus where devices have not been tested for efficacy or safety for use against the virus causing COVID-19 or harder-to-kill viruses.

Pesticide devices, unlike some existing surface disinfectant products that have data on file with EPA showing effectiveness against similar viruses, are not eligible under the agency’s Emerging Pathogens Policy to make claims related to the coronavirus/SARS-CoV-2 or for inclusion on EPA’s “List N” of products deemed to be effective against the virus.

Pesticide devices, though not subject to registration, are subject to other EPA requirements. For example, while devices will not have an “EPA Registration Number,” they are required to be labeled with an “EPA Establishment Number” to identify the facility at which the device was produced. In particular, any claims made for devices may not be false or misleading, and, therefore, manufacturers should have data on file to substantiate any claims. It is possible, therefore, that a device could be effective against coronavirus, and legally could make such claims, though companies should be prepared to defend the statements. To do so, companies should look carefully at the criteria for claim approval in EPA’s Emerging Pathogens Policy.

EPA is actively pursuing enforcement in regard to illegal coronavirus claims, further information on which can be found at https://www.epa.gov/enforcement/covid-19-enforcement-and-compliance-resources.

On the latest episode of the Ad Law Access Podcast, Advertising and Marketing practice Christie Thompson discusses the key regulatory requirements (the FTC’s “Green Guides”) and practical tips for companies to consider when engaging in green marketing in the United States.

Listen on Apple, Spotify, Google Podcasts, SoundCloud or wherever you get your podcasts.

For more information on these and other topics, visit:

• Advertising and Privacy Law Resource Center
• Ad Law Access Blog
• Ad Law News and Views Newsletter
• Kelley Drye’s Advertising and Marketing Practice Page

• Substantiate all objective claims;
• Use clear and conspicuous disclosures;
• Specify how the claim applies (e.g., product, package, or service);
• Do not overstate environmental impact; and
• Clearly identify points of comparison.

• Qualify “Green,” “Eco-Friendly” and similar claims to identify the particular benefit and use those claims only if the benefit is significant.
• Use “Recycled Content” claims only for materials that have been recovered or diverted from the waste stream during the manufacturing process or after consumer use. Advertising for products made only partly from recycled content should include the percentage of recycled content (e.g., “Made from 30% recycled plastic bottles”).
• Avoid “Free-Of” claims (e.g., “free of dyes”) unless:
  • The product doesn’t have more than trace amounts or background levels of the substance;
  • The amount of substance present doesn’t cause harm that consumers typically associate with the substance;
  • The substance wasn’t added to the product intentionally; and
  • The product doesn’t include a different substance that poses a similar environmental risk.
• Qualify claims about “Renewable Material” to identify the material used and explain why it is renewable.

Goya advertises that its Excelsior brand pasta is “La Pasta Favorita de Puerto Rico.” In some cases, that tagline is accompanied by other superlatives, such as statements that the pasta is “delicious” and the “best for your family.” A competitor challenged these claims at the NAD, demanding that Goya provide substantiation. Pointing to the Eighth Circuit case, Goya argued that its claims were merely puffery and that it didn’t need any proof. The NAD disagreed.

Starting with a dictionary, the NAD noted that “Favorite” is defined as a “person or thing that is preferred to all others of the same kind or is especially well liked.” Moreover, by referencing “Puerto Rico,” NAD determined that Goya had clearly defined the market in which the preference claim applies. Accordingly, NAD found that Goya’s tagline could reasonably convey a message that Excelsior is preferred to all other pasta brands in Puerto Rico.

Goya pointed to ads in which its tagline was used in conjunction with “fanciful superlatives,” such as “delicious,” which cannot themselves be measured. But the NAD noted that the use of those superlatives didn’t change its analysis. Highlighting those attributes could suggest that they are the reasons “why consumers prefer Excelsior pasta and contributes to the net impression that consumers in Puerto Rico prefer Excelsior to all other brands.”

Claims that a brand is the “favorite” must generally be supported by sales data or consumer survey data. Because Goya didn’t have either, the NAD recommended that Goya stop using the tagline, both online and on product packages.

This case illustrates why the line between objective claims and puffery can be blurry. It also suggests that if a company determines that there is risk associated with a claim, it should think carefully about where it makes that claim. While removing claims online is can be relatively straightforward, removing claims on product packages is a lot more complicated and burdensome.

According to the complaint, Icebox sought to capitalize on the market for locally sourced and sustainable food products by making false and misleading claims. For example, the Icebox Miami airport location claimed that its menu items were “farm-to-terminal” and “local,” but the company’s invoices indicate that almost none of the products were sourced from local farms and distributors, according to the action. The complaint also alleges that defendant’s menus contained representations that its products were from specific local farms and distributors, but its invoices again belied this assertion.

The complaint additionally identifies allegedly misleading claims about “wild” salmon and other fish that had been purportedly caught the same day it was sold to consumers. While the complaint doesn’t address the substantiation that the advertiser would have needed to support these claims, general advertising law principles require advertisers to have a reasonable basis to support such claims. The Florida AG points to Icebox’s invoices as evidence that the defendant lacked such a basis and could not support the claims.

The action is an important reminder that advertisers must consider how consumers are likely to interpret “locally sourced” and “sustainable” claims and ensure that they have substantiation to support those takeaways before making the claims. Unlike many claims for food products that are expressly defined by federal and/or state law, claims about local sourcing and sustainability are not generally defined. The action here, therefore, reinforces the need to consider substantiation both for claims subject to explicit standards and claims related to undefined terms that may be subject to varying interpretations by different consumers.

In this case, the complaint suggests that the defendant's invoices demonstrate that the claims were outright false, but one could imagine an instance where some consumers might consider the food sufficiently "local" and others might view the claim as deceptive. For example, is fish sold in Miami but harvested in north Florida "local"? What makes a product "sustainable"? Consumer perception evidence could be useful in these closer calls. It will be interesting to see whether the terms of any settlement effectively set a new standard for these terms in Florida. Until then, the lesson for advertisers everywhere is to be precise when using such undefined but attractive language.

Misleading and Unsubstantiated Claims. The FTC’s complaint asserts that Moonlight advertised its baby mattresses as “organic,” “natural,” “hypoallergenic,” and “eco-friendly.” Moonlight also indicated that the mattresses were made with “BabySafe Natural Materials” and “eco-friendly plant-based foam.” According to the FTC, the company’s products were made of a majority of non-organic materials. For instance, the cores and fire barriers of the company’s Starlight Simplicity and Little Star mattresses did not contain any organic material, and 70% of the cotton cover of these mattresses was non-organic material. The Little Star mattress core was made of a synthetic latex material, rather than the “natural latex” the company advertised, and for both the Starlight Simplicity and Little Star mattresses, only the mattress ribbon itself contained solely organic materials. According to the FTC, most of the company’s mattresses were made of polyurethane, either wholly or substantially, and the foams in these mattresses were comprised of “little or no plant-based material.”

Moonlight also advertised that testing proved that the mattresses did not contain Volatile Organic Compounds (VOCs) and were “[f]ree of . . . off gassing, or indoor air pollutants.” The FTC found, that Moonlight had no substantiation for its claims that the mattresses do not emit any substances, including VOCs. The settlement prohibits Moonlight from making misleading and unsubstantiated environmental, health, and emissions claims. This includes representations that the product is “in whole or in part” organic, natural, or plant-based, and claims that “the VOC [or any other] emissions from a covered product are zero.” Notably, the prohibition related to emissions applies to any substance, whether or not it is harmful. Furthermore, the company is prohibited from making misrepresentations regarding research.

Lack of Material Connection Disclosures. According to the complaint, Moonlight also deceptively advertised the products as being “Green Safety Shield certified,” while neglecting to disclose that the shield was Moonlight’s own certification, rather than one provided by an independent third party. The settlement requires the company to disclose if it provides its own certifications to its products.

Takeaways. Although this is the FTC’s first case regarding “organic” product claims, the FTC does not provide an explicit definition of the term. This settlement may indicate, however, that the FTC will be looking more closely at “organic” claims, especially if the product is advertised as including a particular amount of organic material. As with other scientific claims, any statements about a product’s organic content or emission of any substance, including VOCs, requires sufficient substantiation, particularly if the product is intended for use by children. Moreover, if a company develops and relies on its own certification or seal, it must be sure to clearly disclose this association in its advertising.