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[Editor’s note: After this blog was drafted and put in our queue for publication, the Alliance for Responsible Mining published an Open Paper addressed to ISO, the London Bullion Marketers Association (LBMA), the Responsible Jewelry Council (RJC) and the Responsible Minerals Initiative (RMI) on the very points discussed below: gold as a waste and the impact of recycling claims on carbon emissions. I was completely unaware of the letter until it posted on LinkedIn yesterday. There may be wider concern about these risks than I expected.]

Okay, “Conflict Minerals Month” isn’t a real thing, but companies regulated by the SEC do have to file their Form SD and Conflict Minerals Report (CMR) by the end of May (by the way, 2024 marks the 10th year of filings!). Given that, it is relevant to talk about conflict minerals. There doesn’t seem like there is much more to say about the topic after ten years. But here is something perhaps you haven’t thought about:

There are at least four different definitions of recycling that apply to a company’s use of conflict minerals in the US. These definitions come from the OECD Minerals Due Diligence Guidance, the US EPA (40 CFR 261, specifically sections 261.4 and 261.6; 40 CFR 266.70), the US Federal Trade Commission Green Guides and ISO 14021:2016. In this age of greenwashing concern and enforcement, inconsistencies between the definitions and related reporting could create legal liability and enforcement in the US.

In general, the definitions differ as to whether a material must first be considered a “waste” (i.e., discarded or disposed) before it can be considered recyclable or recycled. This is a valid question of fact for conflict minerals – especially gold. Gold is rarely discarded – instead, it continually moves through a recycling loop, never really becoming a waste. Someone on LinkedIn argues using ISO 14021 for gold is problematic exactly for this reason. He also states that the ISO standard is used by gold refineries to somehow “eliminate” carbon emissions from gold processing.

With these definitional inconsistencies, might there be future greenwashing enforcement against companies making recycling claims or representations in conflict minerals reports? In a US context, certainly one could say that there is a difference between FTC-regulated statements and claims and those in SEC conflict minerals filings so the risk is low. But these issues (differences in public recycling claims and how/if carbon emissions determinations comes into the picture) could collide as sensitivity to greenwashing waxes – creating trends and pressures we haven’t faced before. Companies would be wise to consider this and take action if needed.

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The Editor

Lawrence Heim has been practicing in the field of ESG management for almost 40 years. He began his career as a legal assistant in the Environmental Practice of Vinson & Elkins working for a partner who is nationally recognized and an adjunct professor of environmental law at the University of Texas Law School. He moved into technical environmental consulting with ENSR Consulting & Engineering at the height of environmental regulatory development, working across a range of disciplines. He was one… View Profile