You may have seen a wave of products boasting that they utilise recycled ocean plastic for their packaging. While it sounds like a win for the environment, recent actions taken by the Australian Competition and Consumer Commission (ACCC) suggest that the regulatory waters are somewhat choppy – with the regulator indicating that it considers misleading representations with respect to “ocean plastic” and “ocean bound plastic” claims to be an enforcement priority.

Most recently, on 18 April 2024, the ACCC initiated proceedings in the Federal Court against Clorox Australia Pty Ltd, the manufacturer of GLAD-branded kitchen and garbage bags, for allegedly making false or misleading representations in breach of the Australia Consumer Law that certain kitchen and garbage bags were partly made of recycled “ocean plastic” (GLAD case).

These actions raise questions about when, if ever, it might be appropriate and accurate for a company to be making a “recycled ocean plastic” claim and what the practical difference might be between “ocean plastic” and “ocean bound plastic”. In this article, we dive into whether “ocean bound plastic” is riding the wave of sustainability or just creating a misleading ripple.

THE FIRST PUBLISHED ACCC ACTION AGAINST “OCEAN PLASTIC” CLAIMS

In an earlier ACCC action (2023) against Moo Premium Foods Pty Ltd (MOO), the ACCC accepted a court enforceable undertaking from MOO in relation to making false and misleading representations about their yogurt product packaging. On its website and social media platforms, MOO claimed that its packaging was made from “100% ocean plastic” when, in fact the plastic was collected from the coastline and waterways, and not directly removed from the ocean.

MOO defined its “100% ocean plastic” claim by reference to “reclaimed ocean bound plastic”, being abandoned plastic that was collected within 50km of the shorelines in regions where waste management is inexistent or inefficient. The ACCC argued that this gave the impression it was made from plastic waste collected directly from the ocean.

MOO included qualifying statements in relation to the claim. However, these were placed on the top and back of MOO’s packaging, in much smaller font than the main “100% ocean plastic” statement which appeared on the front of the product. This approach was contested, in keeping with a long line of ACCC and Court findings where qualifying statements and disclaimers may be insufficient to change a misleading representation created by the “overall impression”.

MOO acknowledged fault and committed to updating its packaging design and online marketing materials for its yogurt products, to amend and clarify the ocean plastic representations. On the front of its products, the MOO packaging now states “100% Ocean Bound Plastic” adding the word “bound”. We are unaware whether the ACCC approved this amended packaging (even though such practice is common following an ACCC action for misleading and deceptive packaging), or is yet to take any follow-up action against MOO regarding the amended packaging.

So, theoretically, “ocean bound plastic” could have been a more accurate (and thus not misleading) representation of where the plastic was collected. Unfortunately, the recent ACCC action announced against GLAD bags suggests that industry cannot be so confident just yet.

HOW THE ACCC ACTION AGAINST GLAD COMPLICATES MATTERS

In a murky development, the GLAD case casts doubt upon whether the ACCC considers there to be any distinction between “ocean” and “ocean bound” representations. The ACCC’s Concise Statement in relation to the GLAD case does not distinguish between the two phrases, creating ambiguity for businesses seeking to accurately represent their sustainability initiatives, as now it seems that these two claims have effectively been lumped together as misleading.

In the GLAD case, the ACCC alleges that Clorox represented that its GLAD Kitchen Tidy Bags and Garbage Bags were comprised of 50% recycled “ocean plastic” collected from an ocean or sea, when this was not the case. The ACCC argues that, instead, these products were partially made from plastic that was collected from communities in Indonesia up to 50 kilometres from the shoreline, and not directly from the ocean or sea. So far, so similar to the action against MOO.

The ACCC claims that this marketing has the effect of denying consumers concerned about environmental pollution, particularly waste in the oceans, the ability to make informed purchasing decisions.

However, despite acknowledging that for a period (between 6 March and 13 November 2022) Clorox amended certain on-pack claims to include an “ocean bound plastic” representation, the ACCC is not treating these altered claims any differently in terms of its allegations of misrepresentation. As with the MOO case, the ACCC is not satisfied with smaller, less prominent explanatory statements. But in the GLAD case, it could be going further to even seek to stop any “ocean bound” claims as well.

It is important to note that the Concise Statement makes it clear that the “ocean bound” amendment to select GLAD packaging was in addition to a prominent front of pack “ocean plastic” claim. Therefore, this case will not consider whether an “ocean bound” claim by itself is inherently misleading; only whether the “ocean bound” clarification was sufficient to clarify the original “ocean plastic” claim.

HOW CAN YOU AVOID ACCC SCRUTINY FOR MAKING THESE CLAIMS?

In time, the GLAD case might provide some clarity, especially if a Court or settlement does end up distinguishing between “ocean plastic” and “ocean bound plastic” representations. However, in the interim, it is clear that there are significant risks associated with making vague statements suggesting direct sea or ocean cleanup. Does that mean environmental claims cannot and should not be made? Of course not – but it does highlight the path that must be taken and how sustainability marketing campaigns ought to be approached with caution.

Given that consumers are becoming increasingly environmentally conscious, and willing to pay a premium for sustainable products, it has become imperative for businesses to be transparent and accurate when making any such clams. Businesses should:

1. take care in providing any additional detail or qualifying statements about their use of these claims, and
2. ensure that the packaging is clear and that any representations are carefully measured and can be backed up by the underlying facts.