What does the FTC mean by "sludge"?

In the FTC proceeding where the term is defined, sludge means the residual, semi-solid material left from industrial wastewater or sewage treatment processes. That definition came from a joint stipulation in which a respondent and Complaint Counsel supplied agreed definitions of scientific and technical terminology.

Can a product be named a "sludge solvent"?

Two sellers agreed not to use the designation "sludge solvent" in a brand name, or by any other means, to tell buyers that a product removes sludge or waste from fuel oil tanks. Their agreement reached their own products and any other products of substantially the same compositions or possessing substantially the same properties.

Does an environmental claim that cites sludge treatment need a reasonable basis?

The Commission's complaint against Safe Brands alleged that the advertisements carried an implied claim that the advertiser had a reasonable basis for its representations, and it described that claim as one that respondents possessed and relied upon a reasonable basis that substantiated their environmental representations. The advertising pointed to degradation in activated sludge treatment plants, stating that in an activated sludge treatment plant operating at 65 degrees Fahrenheit, PG is fully degraded within 24 hours.

Is sewage sludge compatible with an "organic" claim?

The FTC's amended complaint in the Whole Foods and Wild Oats matter describes organic foods as foods produced using no genetically engineered seeds or crops, sewage sludge, long-lasting pesticides or fungicides. The same complaint adds that products labeled "organic" must be certified by a federally accredited certifying agency as satisfying USDA standards.

Which statute is a business dealing with when a sludge claim draws FTC action?

The Federal Trade Commission Act is the statute in play, and the Elmirite complaint charged that the challenged fuel oil claims were unfair and deceptive acts and practices within the meaning of that Act. In the 7 Day Miracle Cleanse complaint, the Commission said it enforces Section 5(a) and also Section 12, which prohibits false advertisements for food, drugs, devices, services, or cosmetics in or affecting commerce.

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Sludge

Berkeley Robinson, Managing Attorney at Robinson Law Firm PLLC

Author

Berkeley Robinson, Esq.

Managing Attorney, Robinson Law Firm PLLC

Berkeley has served as the go-to counsel for many scaling businesses in a transactional and litigation management capacity. Before becoming an attorney, Berkeley grew sales teams, ran online marketing campaigns, and did everything else an entrepreneur does—and still does today as the founder of two online businesses.

Definition

The government has not defined "Sludge" in a statute or regulation.

Based on our data, a definition of "Sludge" is "the residual, semi-solid material left from industrial wastewater, or sewage treatment processes." Source: Joint Stipulation of the Parties Concerning Scientific Definitions (Sept. 4, 2014) In one laboratory's usage, the sewage sludge it used consisted of the solids that come from the digester in that laboratory. Source: 150206ecmdecision-1, Finding 1061

Key legal rules

Sellers accepted these limits on sludge claims in FTC stipulations:

In Stipulation No. 8241, Hercules Chemical Co., Inc. agreed not to represent, directly or by implication, whether by the designation "sludge solvent" in the brand name or by any other means, that its product removes sludge or waste from fuel oil tanks, and Samuel A. Wander, trading as The Economy Plumber Co., agreed to the same limit for his product. Source: Stipulation No. 8241, FTC Decisions vol. 48
In a separate stipulation, the sellers of a fuel oil "conditioner" designated "NCC" agreed not to represent, directly or by implication, that use of the product assures freedom from sludge, dirty tanks, clogged feed lines, clogged nozzles, dirty strainers, carbonized pre-heater coils or dirty burner tips. Source: Stipulation No. 8529, Stipulation 1-24719 (Feb. 16, 1954)

For the sake of space, this page lists only the primary rules related to this term that most businesses should follow. More may apply to your situation, and your unique facts affect how they apply.

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Why these rules exist

Claims about sludge reach the FTC through Section 5(a) of the FTC Act, which prohibits unfair or deceptive acts or practices in or affecting commerce. Source: Complaint for Permanent Injunction and Other Equitable Relief (FTC v. 7 Day Marketing, Inc. et al.) The Elmirite fuel oil matter shows how: the complaint alleged that the challenged representations constituted unfair and deceptive acts and practices within the meaning of the Federal Trade Commission Act. Source: In re Edward F. Quirke and Sara Quirke, Trading as Elmira Steel Co., Docket 5374 (Aug. 16, 1951), FTC Decisions vol. 48

The harm the Elmirite complaint described is that the statements had a tendency and capacity to mislead purchasers into believing they were true and buying on that belief. Source: In re Edward F. Quirke and Sara Quirke, Trading as Elmira Steel Co., Docket 5374 (Aug. 16, 1951), FTC Decisions vol. 48 Because that harm comes from the promise itself, the "sludge solvent" stipulations reach it whether it is made in a brand name or "by any other means." Source: Stipulation No. 8241, FTC Decisions vol. 48

Enforcement examples

In re Edward F. Quirke and Sara Quirke, trading as Elmira Steel Co. (powdered fuel oil conditioner)

In re Edward F. Quirke and Sara Quirke, Trading as Elmira Steel Co., Docket 5374, Decision of the Commission (Aug. 16, 1951)

The Quirkes manufactured and sold a powdered solvent preparation designed to improve or condition fuel oil, called Elmirite. Source: In re Edward F. Quirke and Sara Quirke, Trading as Elmira Steel Co., Docket 5374 (Aug. 16, 1951), FTC Decisions vol. 48 The complaint alleged that they made false and misleading statements to buyers through circulars, letters and pictures, among them that the product "will eliminate sludge and water from fuel oil tanks." Source: In re Edward F. Quirke and Sara Quirke, Trading as Elmira Steel Co., Docket 5374 (Aug. 16, 1951), FTC Decisions vol. 48 The complaint charged that this statement was untrue: "Its use will not eliminate sludge and water from fuel oil tanks, nor reduce oil viscosity." Source: In re Edward F. Quirke and Sara Quirke, Trading as Elmira Steel Co., Docket 5374 (Aug. 16, 1951), FTC Decisions vol. 48

Outcome. The initial decision found that many of the challenged claims had been abandoned before the complaint issued and that others were later given up. Source: In re Edward F. Quirke and Sara Quirke, Trading as Elmira Steel Co., Docket 5374 (Aug. 16, 1951), FTC Decisions vol. 48 On that footing, the trial examiner concluded that the public interest did not require further corrective action and that the motion to dismiss without prejudice should be granted. Source: In re Edward F. Quirke and Sara Quirke, Trading as Elmira Steel Co., Docket 5374 (Aug. 16, 1951), FTC Decisions vol. 48 The complaint was dismissed without prejudice to the Commission's right to institute further proceedings should future facts warrant, and the initial decision became the Commission's decision on August 16, 1951. Source: In re Edward F. Quirke and Sara Quirke, Trading as Elmira Steel Co., Docket 5374 (Aug. 16, 1951), FTC Decisions vol. 48

In re Nutmeg Chemical Co. (soot remover and fuel oil conditioner)

Stipulation No. 8529, Stipulation 1-24719 (Feb. 16, 1954)

Frederick J. Geisinger and Herbert Geisinger, copartners trading as Nutmeg Chemical Co. of New Haven, Connecticut, sold a soot removing preparation designated "No-Karb" and a fuel oil "conditioner" designated "NCC." Source: Stipulation No. 8529, Stipulation 1-24719 (Feb. 16, 1954)

Outcome. They entered into an agreement to cease and desist from representing, directly or by implication, that use of NCC assures freedom from sludge, dirty tanks, clogged feed lines, clogged nozzles, dirty strainers, carbonized pre-heater coils or dirty burner tips. Source: Stipulation No. 8529, Stipulation 1-24719 (Feb. 16, 1954)

In re Hercules Chemical Co., Inc. and Samuel A. Wander (fuel oil "sludge solvent")

Stipulation No. 8241 (as amended), Stipulation 1-2340D (May 6, 1954)

Hercules Chemical Co., Inc., a New York corporation, sold products designated "Hercules Fuel Oil Sludge Solvent," "Hercules Soot Destroyer," "Hercules Boiler Solder," and "Hercules Plastic Lead." Source: Digest of Stipulations, Stipulation No. 8241 (as amended), Stipulation 1-2340D (May 6, 1954) Samuel A. Wander, doing business as The Economy Plumber Co., sold a parallel line that included "Economy Fuel Oil Sludge Solvent." Source: Digest of Stipulations, Stipulation No. 8241 (as amended), Stipulation 1-2340D (May 6, 1954)

Outcome. Each agreed to cease and desist from representing, by the designation "sludge solvent" in the brand name or by any other means, that the product removes sludge or waste from fuel oil tanks. Source: Digest of Stipulations, Stipulation No. 8241 (as amended), Stipulation 1-2340D (May 6, 1954) Hercules also agreed to stop representing that its product prevents or removes the formation of carbon deposits on burner tips or keeps strainers or nozzles clean. Source: Digest of Stipulations, Stipulation No. 8241 (as amended), Stipulation 1-2340D (May 6, 1954)

In re Safe Brands Corporation, Warren Distribution, Inc., and ARCO Chemical Company (propylene glycol antifreeze)

In re Safe Brands Corporation, Warren Distribution, Inc., and ARCO Chemical Company, Complaint, Docket No. C-3647 (Mar. 26, 1996)

An advertisement told readers that propylene glycol "is fully degraded within 24 hours in activated sludge treatment plants operating at 65°F." Source: In re Safe Brands Corporation, Warren Distribution, Inc., and ARCO Chemical Company, Complaint, Docket No. C-3647, Exhibit F The complaint alleged that, through its advertisements, the antifreeze's marketers represented that Sierra antifreeze and other propylene glycol-based antifreezes are safer for the environment generally than conventional antifreeze. Source: In re Safe Brands Corporation, Warren Distribution, Inc., and ARCO Chemical Company, Complaint, Docket No. C-3647 (Mar. 26, 1996)

Outcome. The complaint alleged that the respondents had a reasonable basis for saying the antifreeze was less toxic to humans, pets, and wildlife that may ingest it, but that they did not possess and rely upon a reasonable basis to substantiate that it was safer for the environment generally. Source: In re Safe Brands Corporation, Warren Distribution, Inc., and ARCO Chemical Company, Complaint, Docket No. C-3647 (Mar. 26, 1996) The complaint gave one reason: used antifreeze, whether ethylene glycol-based or propylene glycol-based, may contain lead or other substances hazardous to the environment. Source: In re Safe Brands Corporation, Warren Distribution, Inc., and ARCO Chemical Company, Complaint, Docket No. C-3647 (Mar. 26, 1996) The Commission issued the complaint on March 26, 1996. Source: In re Safe Brands Corporation, Warren Distribution, Inc., and ARCO Chemical Company, Complaint, Docket No. C-3647 (Mar. 26, 1996)

FTC v. 7 Day Marketing, Inc. (colon cleanse program)

Complaint for Permanent Injunction and Other Equitable Relief (FTC v. 7 Day Marketing, Inc. et al.)

7 Day Marketing, Inc. advertised, marketed, offered for sale, and sold the 7 Day Miracle Cleanse program. Source: Complaint for Permanent Injunction and Other Equitable Relief (FTC v. 7 Day Marketing, Inc. et al.) Among the statements the complaint sets out, "The Health Man" says: "Once you have removed the sludge build-up from your colon, your body will be able to absorb these nutrients more efficiently and you’ll feel better because of it." Source: Complaint for Permanent Injunction and Other Equitable Relief (FTC v. 7 Day Marketing, Inc. et al.)

Outcome. The complaint describes the Commission's authority to bring federal district court proceedings to enjoin violations of the FTC Act and to secure equitable relief, including rescission or reformation of contracts, restitution, the refund of monies paid, and the disgorgement of ill-gotten monies, as may be appropriate in each case. Source: Complaint for Permanent Injunction and Other Equitable Relief (FTC v. 7 Day Marketing, Inc. et al.)

Exposure

A sludge claim the FTC treats as deceptive can end in a binding stipulation. In Stipulation No. 8241, Hercules Chemical Co., Inc. and Samuel A. Wander, and each of them, agreed that, as amended, all the terms and provisions of the stipulation "shall remain in full force and effect." Source: Digest of Stipulations, Stipulation No. 8241 (as amended), Stipulation 1-2340D (May 6, 1954)

A formal proceeding is also possible: the Elmirite complaint was issued pursuant to the provisions of the Federal Trade Commission Act. Source: In re Edward F. Quirke and Sara Quirke, Trading as Elmira Steel Co., Docket 5374 (Aug. 16, 1951), FTC Decisions vol. 48

In federal court, the Commission may seek to enjoin violations and to obtain equitable relief, including rescission or reformation of contracts, restitution, the refund of monies paid, and the disgorgement of ill-gotten monies, as may be appropriate in each case under 15 U.S.C. § 53(b). Source: Complaint for Permanent Injunction and Other Equitable Relief (FTC v. 7 Day Marketing, Inc. et al.)

FAQs

1.Microsoft Word - Joint Stipulation re Scientific Terms (Final), 9.4.2014.docx. Joint Stipulation of the Parties Concerning Scientific Definitions (Sept. 4, 2014)
2.150206ecmdecision-1. 150206ecmdecision-1, Finding 1061
3.ftcd-vol48july-june1952pages1558-1658. Stipulation No. 8241, FTC Decisions vol. 48See also CPY Document. Digest of Stipulations, Stipulation No. 8241 (as amended), Stipulation 1-2340D (May 6, 1954)See also ftcd-vol48july-june1952pages1558-1658. Stipulation No. 8241, FTC Decisions vol. 48