poop bag seller's "compostable" claims are plausibly ... false

Natale v. 9199-4467 Quebec Inc., 2023 WL 4850531, No. 21-CV-6775 (JS)(SIL) (E.D.N.Y. Jul. 28, 2023)

Many lawsuits against “recyclable” claims have been dismissed, but not this “compostable” one. Defendant sells “Earth Rated Certified Compostable Poop Bags.” “On the packaging [of] the 60-count version of the Product, Defendant represents that the Product is ‘Certified Compostable.’ ” The packaging for the 105-count and the 225-count versions of the Product are “identical in all respects except for the size” and likewise state that they are “Certified Compostable.” Defendant’s website says that its “certified compostable bags meet the ASTM D6400 standard for municipal composting as well as the EN13432 Home and Industrial standards for compostability.” It further says that the Product “is ‘certified for home composting’ and is compostable at a ‘city compost’ facility.”

But: “On the back of the 60-count version of the Product,” the packaging “includes a small print disclaimer in small font” stating: “COMPOSTABLE IN INDUSTRIAL FACILITIES[.] Check locally, as these do not exist in many communities.” The packaging also states “[n]ot suitable for backyard composting.” A small print disclaimer on the side panel of the 60-count version also says: “[s]hould only be disposed of in commercial composting facilities where pet waste is accepted.” The 105-count and 225-count versions of the Product also include small-print disclaimers stating: “Should only be disposed of in commercial composting facilities where pet waste is accepted. These facilities may not exist in your area. If you want to compost your pet waste in a home compost, please ensure to only use the resulting compost on non-food crops.” The disclaimers on the website require clicking a “Read more” tab; FAQs don’t use relevant titles. Users must navigate to an innocuously titled FAQ: “[h]ow should I dispose of the compostable poop bags” to access the disclaimers. Plaintiffs alleged that “[n]o reasonable consumer would expect that by clicking on ambiguously named or indiscriminate links, they would find small print language on Defendant’s website ... that would contain language inconsistent with the representation that the Product is capable of being composted.”

The FTC “has stated that ‘compostable’ claims on dog waste products are ‘generally untrue,’ ” given that “dog waste cannot be composted because it can contain harmful contaminants (e.g., E. Coli).” The EPA has stated that “[e]ven in backyard composting ... dog waste can contain harmful parasites, bacteria, viruses, or pathogens.” Plaintiffs further alleged that the phrase “if [the] city’s municipal composting accepts pet waste” was false and misleading because “industrial composting of dog waste is not available in the United States.” Plaintiffs alleged that “[n]o reasonable consumer would expect that the small print language on the back and side panels of the Product would contain language inconsistent with the representation that the Product is capable of being composted” and that no reasonable consumer would “expect that a ‘certified compostable’ dog waste bag would not be capable of being composted.”

The FTC’s Green Guides use two relevant examples:

Example 2:

A garden center sells grass clipping bags labelled as ‘Compostable in California Municipal Yard Trimmings Composting Facilities.’ When the bags break down, however, they release toxins into the compost. The claim is deceptive if the presence of these toxins prevents the compost from being usable.

Example 4:

Nationally marketed lawn and leaf bags state ‘compostable’ on each bag. The bags also feature text disclosing that the bag is not designed for use in home compost piles. Yard trimmings programs in many communities compost these bags, but such programs are not available to a substantial majority of consumers or communities where the bag is sold. The claim is deceptive because it likely conveys that composting facilities are available to a substantial majority of consumers or communities.

The 60-count version sells approximately $0.15 per bag. Defendant’s similar 120-bag product that is not certified compostable sells for approximately $0.06 per bag.

Unsurprisingly, plaintiffs properly alleged economic injury sufficient for standing. And they adequately pled deceptive acts/false advertising under N.Y. G.B.L. Sections 349 & 350. They plausibly alleged lack of compliance with the Green Guides, getting out of NY’s safe harbor provisions for when an “act or practice is ... subject to and complies with the rules and regulations of, and the statutes administered by, the [FTC] or any other official department, division, commission or agency of the United States.”

It was plausible that the disclaimers weren’t clearly and prominently displayed both because they were on the side/rear and because they contradicted the prominent “Certified Compostable” claim on the front, as well as defendant’s admission in one place on its site that “industrial composting of dog waste is not available in the United States.” There were further contradictions in that the 60-count package said it wasn’t is not suitable for home composting but the larger count versions state they are compostable at home, but not for food crops. Regardless, plaintiffs also alleged that pet waste is not safe to compost at all due to its release of harmful bacteria as it decomposes. This was sufficient to survive a motion to dismiss.
“[W]here appropriate facilities are not merely limited, but are in fact non-existent, the suggested language that customers should ‘check locally’ because such facilities ‘do not exist in many communities,’ or that facilities ‘may not exist in [the customer’s] area,’ is plausibly deceptive in that it suggest that if consumers were to look for an appropriate facility they may find one, when, in actuality, no such facilities exist.” This problem was compounded by the contradictory disclaimers; if it wasn’t safe for backyard composting or eligible for industrial composting, then it was plausibly deceptive because it wasn’t compostable at all. The package didn’t explain what the ASTM standard meant or why it would matter if the consumer couldn’t actually compost the product.

Warranty, fraud, and negligent misrepresentation claims also survived.