On January 20, 2010, the US Department of Agriculture (USDA) published a final rule announcing its BioPreferred Program, a voluntary product certification and labeling program established under the authority of section 9002 of the Farm Security and Rural Investment Act of 2002 (FSRIA), as amended by the Food, Conservation, and Energy Act of 2008 (FCEA), 7 U.S.C. 8102. According to the USDA press release, “this new label will clearly identify biobased products made from renewable resources, and will promote the increased sale and use of these products in the commercial market and for consumers.” The rule is effective February 22, 2011.
Under the program, a biobased product, after being certified by USDA, can be marketed using the “USDA Certified Biobased Product’’ label. Biobased products are those composed wholly or significantly of biological ingredients – renewable plant, animal, marine or forestry materials. The presence of the label will mean that the product meets USDA standards for the amount of biobased content and that the manufacturer or vendor has provided relevant information on the product for the USDA BioPreferred Program web site. The rule applies to manufacturers and vendors who wish to participate in the voluntary labeling component of the BioPreferred Program. It also applies to other entities, such as trade associations, that want to use the label to promote biobased products.
With the launch of the USDA biobased product label, the BioPreferred program is now comprised of two parts: a biobased product procurement preference program for Federal agencies, established in 2005, and a voluntary labeling initiative for the broad-scale marketing of biobased products. According to the USDA’s website, the Agency has already designated approximately 5,100 biobased products for preferred purchasing by Federal agencies. The new label will make identification of these products easier for Federal buyers, and will increase awareness of these high-value products in other markets. USDA estimates that there are 20,000 biobased products currently being manufactured in the United States and that the growing industry as a whole is responsible for over 100,000 jobs.
Lastly, readers will recall that the Federal Trade Commission (FTC) recently proposed revisions to its guidance concerning compliance with section 5 of the FTC Act when making environmental marketing claims – the so-called “Green Guides.” In that proposal, the FTC elected to defer to the USDA’s BioPreferred labeling program for guidance on marketing products covered by the program. So, companies making “biobased” marketing claims in compliance with the USDA’s requirements presumably would have a limited safe-harbor from FTC enforcement. However, the FTC has reminded marketers that its proposal contains guidance concerning “made with renewable materials” claims, which can be similar to “biobased” claims, so marketers would need to remain mindful of that guidance when making such claims.