NAD Finds WinCup Can Support Biodegradability Claims for ‘Vio’ Cups, Recommends Revisions to Disclosures

New York, NY – Nov. 24, 2015 – The National Advertising Division has determined that New WinCup Holdings, Inc., can support biodegradability claims for the company’s Vio expandable polystyrene cups, a single-use product for the food-service industry. NAD recommended that the advertiser add qualifying language to its disclosure regarding the availability of wetter and biologically active landfills.

Advertising claims made by WinCup were challenged by Dart Container, a competing manufacturer of single-use food-service products.

Claims at issue included:

• The Vio cup has “been shown to biodegrade 84.3% after 1154 days under conditions that simulate a wetter, biologically active landfill, using the ASTM D5511-11 test. Note that stated rate and extent of degradation do not mean that the product will continue to decompose.”

• “99% of plastic foodservice disposables end up in a landfill** And that is exactly where Vio makes a difference.”
  • “** Foam Recycling Fact Sheet, 2012, Clean Water Action California.”

• “It all comes together with Vio, the breakthrough biodegradable* foam cup.  Vio tells customers, ‘IT’S OK TO THROW ME AWAY,’ so you won’t have to modify your waste stream one bit in order to do good.”

• “*Vio Cups have been shown to biodegrade 84.3% after 1154 days under conditions that simulate a wetter, biologically active landfill, using the ASTM D5511-11 test.  Such a facility may not exist in your area. Note that stated rate and extent of degradation do not mean that the product will continue to decompose.”

NAD also considered whether the claims at issue implied that the Vio cup can be discarded in any trash bin and will biodegrade within 1154 days or that the Vio cup will biodegrade in any landfill.

The advertiser in this case relied on the results of industry standard gas evolution testing to support its establishment claims regarding biodegradability. A threshold issue for NAD was whether the ASTM D5511 test – which evaluates the biodegradability of materials in a landfill by using methane gas emissions as a proxy for biodegradation – offered a competent and reliable scientific method to assess the biodegradability of materials in landfills.

NAD determined that the advertiser provided competent and reliable evidence and a reasonable basis for its narrowly tailored biodegradability claims, which identify the specific types of landfills simulated by the laboratory test conditions.

NAD’s analysis then focused on whether WinCup’s biodegradability claims, as they appeared in various marketing materials, were properly qualified and in compliance with the guidelines articulated by the FTC.

NAD recommended that WinCup further qualify the biodegradable claim by stating the percentage of consumers or communities that have access to landfills where the Vio material will biodegrade or WinCup may use language which accurately indicates to consumers the limited availability of such landfills.

NAD recommended that the advertiser discontinue the claims “99% of all plastic foodservice disposables end up in a landfill**  And that is exactly where Vio makes a difference,” “It all comes together with Vio, the breakthrough biodegradable* foam cup. Vio tells customers, ‘IT’S OK TO THROW ME AWAY,’ so you won’t have to modify your waste stream one bit in order to do good.”

WinCup, in its advertiser’s statement, said it takes pride in making accurate product claims and will take NAD’s recommendations into consideration in future advertising of the Vio line of cups, lids and straws, and will make such modifications as necessary.

Note: A recommendation by NAD to modify or discontinue a claim is not a finding of wrongdoing and an advertiser’s voluntary discontinuance or modification of claims should not be construed as an admission of impropriety. It is the policy of NAD not to endorse any company, product, or service. Decisions finding that advertising claims have been substantiated should not be construed as endorsements.