In May, 11 state attorneys‐general issued a report entitled “The Green Report II — Recommendations for Responsible Environmental Advertising.” In it, the top law enforcement officers of California, Florida, Massachusetts, Minnesota, Missouri, New York, Tennessee, Texas, Utah, Washington and Wisconsin stipulate “how environmental claims can be made in a manner that is most likely to be consistent with state laws.” In other words, follow the guidelines contained herein or face possible prosecution.
The Green Report is built upon the premise that “as more and more manufacturers turn to environmental claims to market their products, the need for federal standards to control and regulate these claims is more important than ever.” A close reading of the report, however, reveals that it’s not fraud they’re after, but environmentally incorrect speech.
“Green Report II” is replete with calls for self‐censorship. These state officials, in the guise of fighting “green‐collar fraud” (in the words of Minnesota Attorney General Hubert Humphrey III), are setting themselves up to be the arbiters of acceptable political debate.
One would have thought that our nation’s top law enforcement officials would consider spiraling crime rates and the oppressive fear of urban violence their chief worries these days. But instead, they say in the very first line of the report’s executive summary, “There is no more pressing issue facing our society than the need to change the way we live, work, and do business in order to protect our natural environment.”
The report asserts that “no reliable and meaningful methodology exists for conducting complex product life assessments” regarding the environmental impact of various materials and products. Therefore, businesses are directed to “restrict product life claims until federal standards are in place.” Yet scientific life‐cycle analysis of products and packages has been commonplace in the business world for years as a tool for examining the ultimate cost of utilizing certain materials. Of course, some studies are more valuable and relevant than others, but since when did the federal government get in the business of regulating the methodology or the assumptions of private studies?
A recent report by Franklin Associates (a frequent contractor for the U.S. Environmental Protection Agency), for example, found that the manufacture and disposal of 128‐ounce paperboard milk containers generates twice as much air pollution, nearly five times more water pollution, 48 times more industrial waste and almost twice as much solid waste as the manufacture and disposal of 128‐ounce high‐density polyethylene (plastic) milk containers. If there is something wrong with the methodology of the study, let’s hear it. Its validity has yet to be challenged by any reputable source, and yet, if the attorneys‐general have their way, it could not be cited by plastic packagers in their advertising in 11 states.
Next the attorneys stipulate that “environmental claims should be as specific as possible, and not general, vague, incomplete, or overly broad.” How detailed must claims be? According to the report, with few exceptions, a package or product that claims to be “recyclable” must indicate the maturity of the recycling infrastructure for that material, the number of locations where the product is being recycled, the nature of the collection sites utilized if there is no curbside pick‐up available, and the states where collection and recycling facilities are located. Manufacturers not keen on attaching this extensive legal brief to every package will likely just forgo any claim whatsoever. Environmentalists better hope so, because the packaging space necessary to report all this information is bound to dramatically increase the solid waste stream.
Ironically, the report does give a qualified endorsement to “Green Seal” programs, which, for a fee, affix a simple green stamp to products and packages deemed environmentally superior by the green lobby. There is an obvious inconsistency here. Businesses are not to make “general, vague, incomplete, or overly broad” statements or “claims which imply that a product has no negative or adverse impact on the environment.” Why are such claims misleading when made by businesses but socially beneficial when made by environmentalists?
At the same time, the attorneys‐general also find that the consumer is threatened by overly specific environmental claims. For example, the report warns that stating that an aerosol spray product “contains no CFCs” may also mislead, because the phrase “no CFCs” may mean ” ‘safe for the ozone’ to many consumers.”
Manufacturers of disposable products are also directed to cease and desist from claiming that their goods do not contribute significantly to the overall garbage problem. Why? Fast‐food packaging, for example, constitutes less than one‐tenth of 1% of the solid waste stream. Studies by Prof. William Rathje of the University of Arizona reveal that consumer packaging reduces the volume of the waste stream by about 33% because it enables consumers to waste less food. Harvey Alter of the U.S. Chamber of Commerce has found the same phenomenon, which he terms packaging’s “waste reduction coefficient.” His studies show that for each pound of plastic packaging, 1.66 pounds of food waste is alleviated. A pound of paper packaging reduces food waste by 1.41 pounds.
Perhaps most disturbing is the report’s call‐to‐arms against “trivial and irrelevant claims.” The attorneys‐general warn, for example, that “it is simply irrelevant, and perhaps deceptive, to suggest that a product made with petroleum products, a scarce nonrenewable natural resource, provides an environmental benefit because it does not use trees.” Of course, relevance is in the eye of the beholder. Prof. James Guillet of the University of Toronto has concluded that replacing plastic petroleum‐based packaging with paper would require the harvest of an additional 161 million acres of forest land annually, an area equivalent to six states the size of Tennessee.
Consider the dilemma faced by Dart Container Co., manufacturer of polystyrene foam cups. Environmentalists are pushing legislation to ban, restrict or tax its product in virtually every state it does business. In an attempt to answer these environmental allegations, Dart affixes labels on its packages pointing out that Dart foam cups “contain no CFCs, are better for incineration, preserve our trees and forests, use fewer resources, are better for landfill, are recyclable.”
All these claims are true. There are no CFCs used in the manufacture of polystyrene foam cups, although most of the public believes otherwise. Polystyrene foam caps have a higher “heating value” than Wyoming coal, which means that garbage combustors can reach higher temperatures and remove more pollutants in the incineration process than they would otherwise. Polystyrene cups don’t require trees to be cut down. Polystyrene cups use fewer economic and natural resources, thus costing, on average, 2 cents less per cup than their paper competitors. Polystyrene cups don’t degrade in landfills, which means that they do not generate methane gas or contribute to toxic leachate, which can threaten groundwater resources. And 50% of the communities where Dart cups are sold have a polystyrene foam recycling program in place.
Yet Dart Container, under pressure from the state attorneys‐general, has agreed to alter its labels in order to avoid unfavorable publicity and potentially ruinous legal costs. Dart was effectively denied the right to engage in the public debate with unpopular, but truthful, things to say about packaging.
The values underlying the First Amendment are best served when we permit vigorous public debate. The best method of correcting for bias is not by suppressing speech, but by encouraging counterspeech. Otherwise, consumers are denied information and individuals who happen to be engaged in commercial enterprise are denied their First Amendment rights.