What Brands Must Know For Calif. Recycle Label Compliance

S.B. 343, passed in 2021 and coming into effect as early as next year, provides stricter regulations for what products or materials can display the "chasing arrows" recyclable symbol. 

The law prohibits the use of the chasing arrows symbol, also known as the Möbius loop, or any other indicator of recyclability on products and packaging unless certain criteria are met, with the purported goal of preventing misleading recyclability claims and keeping unrecyclable materials out of the blue bin.

Background

When consumers see the word "recyclable" or the chasing arrows symbol, many expect that the material can be thrown into curbside recycling bins, taken to a recycling facility, and repurposed. In fact, however, a significant amount of material labeled as recyclable ends up incinerated or in landfills.

The Truth in Labeling law provides for more stringent standards regarding what materials may carry the chasing arrows symbol or other indicators of recyclability.

It addresses both the form of the plastic material and the material itself. With respect to form, many common types of thin plastic materials carrying the recyclable symbol, such as grocery bags, plastic yogurt cups, plastic films and similar materials, cannot be processed by curbside recycling facilities.

Such thin plastics can interfere with recycling machinery, clog the pipeline and contaminate truly recyclable materials. With respect to the plastic materials themselves, some, such as polyethylene terephthalate, are almost always recyclable, while others, such as polystyrene, may not be as widely accepted for recycling.

California Requirements Soon to Take Place

Nearly all products or materials that display the chasing arrows symbol or are otherwise marketed as recyclable will now need to meet California's detailed recyclability requirements. A product or packaging will be considered recyclable in California only if it meets all of the following requirements:

• The material is of a type and form that routinely becomes feedstock used in the production of new products or packaging, and is:
  • Collected for recycling-by-recycling programs for jurisdictions that collectively encompass at least 60% of the population of the state; and
  • Sorted into defined streams for recycling processes by large-volume transfer or processing facilities that process materials and collectively serve at least 60% of recycling programs statewide, with the defined streams sent to and reclaimed at reclaiming facilities.
• The material does not contain components — such as caps and other closures — inks, adhesives or labels that prevent the item from being recycled, as discussed in the design guide published by the Association of Plastic Recyclers.
• The material does not contain certain intentionally added, potentially hazardous chemicals.
• The material does not contain certain intentionally added per- and polyfluoroalkyl substances, or any PFAS at or above 100 parts per million, measured as total organic fluorine.

California has initiated a survey process at waste disposal facilities to identify which materials, and which forms of those materials, meet the criteria set out in the legislation.

A preliminary material characterization study was published in December as part of this process. The final results of this study will ultimately determine which materials are deemed to meet these recycling criteria. Additionally, California will update the study every five years, starting in 2027.

Common Items Possibly at Risk of Being Classified as Nonrecyclable in California

Although the material characterization study is preliminary, it does offer some insight about what items may be at risk of not being able to use the recyclability symbol.

The study identified item categories that exhibited a low recovery rate, meaning that the items generally could not be recycled and repurposed.

As an example, some categories included plastic takeout food containers, lids, solo cups, plates, trays, plastic wine bladders, merchandise bags and bread bags, deodorant containers, squeezable drink bottles, trash bags, and baby and cleaning wipe packages.

After the study is finalized, items deemed nonrecyclable will no longer be allowed to use the chasing arrows symbol or other indicators of recyclability.

It should be noted, however, that manufacturers of rigid plastic bottles or containers will still be required to mark their products with a resin identification code — a number between one and seven identifying the type of plastic — but the number must be placed inside a solid equilateral triangle unless the plastic material meets the new criteria for use of the chasing arrows symbol.

The law does include a carveout for producers of certain at-risk items. If the at-risk item demonstrates a recycling rate of at least 75% in the state, then it will be deemed recyclable.

Likewise, if an at-risk item demonstrates a recycling rate of 60%, then later 75%, by a noncurbside collection program and the item has sufficient commercial value, then that item is deemed recyclable.

Depending on the type of plan approved, the producer may use recyclability symbols to encourage consumers to recycle the items in the blue bin or by a noncurbside recycling program.

Which Parties in the Supply Chain May Be Liable for Violating the Law

Only the person or entity who initiates a false or misleading recyclable claim will face liability under the California law. For instance, a brand that stamps nonrecyclable packaging with the chasing arrows symbol could face liability.

On the other hand, a wholesaler or retailer who sells its products in a container that was erroneously labeled by the container manufacturer would not be liable under this law.

Similarly, manufacturers or producers of the material that make no claims regarding its recyclability would not be liable under this law for false or misleading statements initiated by a wholesaler or retailer.

Ramifications of Violating the Law

Local jurisdictions and the California attorney general are authorized to file civil suits and seek monetary penalties against companies that mislabel their products.

Entities that violate the law may also be liable under California's False Advertising Law and Consumers Legal Remedies Act, both of which prohibit misleading and deceptive advertising, and the latter of which provides a private right of action that allows consumers to file class actions.

Timing of When the New Requirements Go into Effect

As previously mentioned, California has recently published its preliminary material characterization study and is currently in the process of gathering public feedback. All comments and feedback relating to the study must be submitted by Feb. 29.

The implementation of restrictions on the use of chasing arrows or other recyclability claims will commence 18 months after the finalization of the study. Consequently, it is reasonable to anticipate that these restrictions will be enforced no earlier than the fall of 2025.

Takeaway

The California requirements are likely to significantly limit the use of recyclability symbols and claims on products or materials that cannot be recycled through at least 60% of curbside municipal recycling programs in the state.

Brands seeking to use recyclability claims on their products, including the chasing arrows symbol, will need to scrutinize their products and packaging to comply with California's recyclability standards after the requirements go into effect.

However, for products that do not initially meet those standards, brands may still use recycling symbols if recyclability can be demonstrated pursuant to California's law.

*This article was originally published on Law360.