Late last year, California enacted significant new restrictions on products and packaging bearing recyclability claims, including the chasing-arrows symbol commonly used to connote that packaging is recyclable. In order to bear such claims under the new law, products and packaging must meet specified recyclability criteria and substantiating records must be kept. The law, enacted in October 2021, requires California’s Department of Resources Recycling and Recovery (CalRecycle) to survey the recyclable materials currently in the recycling stream and publish this information in a material characterization report. This report will form the basis for evaluating whether products and packaging are considered “recyclable.” The new requirements will go into effect on the date CalRecycle publishes its report, or on January 1, 2024, whichever is later, and the law provides an 18-month grace period for companies to come into compliance following the publication of the first report (i.e., requiring compliance by July 1, 2025 at latest).
Background
Under existing law, California imposes requirements for environmental marketing claims,1 including that such claims must be truthful and not misleading, and that specific documentation must be kept to substantiate such claims.
SB 343 amended these existing laws to regulate recyclability claims in several key ways.2 First, the new law establishes a program requiring CalRecycle to collect data about the recycling rates of different consumer goods and to publish a study determining curbside collection and sorting rates for materials processed by solid waste facilities by January 1, 2024. The law also sets requirements for products and packaging to be considered recyclable. If the study’s results indicate that the products or packaging are not being recycled at the rates required by the act, companies will be prohibited from using indications of recyclability.
New Requirements for Recyclability Claims
- Recyclability Criteria: To be considered recyclable under the new law, the product or packaging must meet the following requirements:
- Be composed of a material type and form that is collected by recycling programs covering at least 60% of the state’s population;
- Be composed of a material type and form that is sorted into defined streams for recycling processes by large volume transfer or processing facilities, that process materials and collectively serve at least 60% of the recycling programs statewide, with the defined streams sent to and reclaimed at a reclaiming facility consistent with the requirements of the Basel Convention;
- Does not include any components, inks, adhesive, or labels that prevent recyclability of the packaging;
- Does not contain an intentionally added chemical identified in forthcoming regulations from CalRecycle; and
- Is not made from plastic or fiber that contains perfluoroalkyl or polyfluoroalkyl substances, or PFAS meeting particular standards.
- Exceptions: The new restrictions do not apply to (1) beverage containers covered by the state’s bottle deposit law; or (2) products and packaging that are required to bear the three-chasing-arrows symbol under California law or federal law (e.g., certain batteries). Further, certain products and packaging that do not meet these requirements may be considered recyclable if they fall under one of several exemptions, which include, of most relevance:
- The product or packaging has a demonstrated recycling rate of at least 75%; or
- The product or packaging is collected through a non-curbside program that recovers at least the following levels and has sufficient commercial value to be marketed for recycling:
- 60% of the product or packaging before January 1, 2030; and
- 75% of the product or packaging on or after January 1, 2030.
Finally, CalRecycle may determine that a product or packaging is recyclable if it is recyclable through a federal- or state- government established program.
- New Recordkeeping Requirements: The new law requires companies making recycling claims for their products and packaging to maintain records substantiating those claims.3 Records maintained under this requirement are available to any member of the public who requests them.
- Updated Resin Code Labeling Requirements: The new law requires all rigid plastic bottles and rigid plastic containers sold within the state of California to be labeled with a code indicating the type of resin used to produce the container, consisting of a number within a triangle, and letters placed below the triangle. The resin identification code cannot be located inside a chasing arrows symbol unless the container meets the statewide recyclability criteria.
Next steps
CalRecycle is currently in the process of developing regulations and the first material characterization study to implement the new law.
The law will likely have a significant impact on companies that produce consumer goods that are capable of being recycled but are not being recycled at the rates required under the act. For instance, California’s Statewide Commission on Recycling Markets and Curbside Recycling, a group established by a 2019 law which includes representatives from public agencies and private solid waste companies, recommended that the state recognize only 15 products as recyclable.4 Companies will need to closely follow the publication of the material characterization report to evaluate recyclability claims and the use of the chasing-arrows symbol, which is required by some other state laws. We will continue to monitor California’s implementation of the new recycling requirements. Please contact us if you have any questions.
Authored by Martin Hahn and Veronica Colas.
References
1 Cal. Bus. & Prof. Code § 17580.
2 Id. at §§ 17580; 17580.5; Cal Pub. Res. Code §§ 18015; 42355.5; 42355.51.
3 Required records include: (1) The reasoning behind the assertion; (2) Any significant adverse environmental impacts directly associated with the producton, distribution, use, and disposal of the consumer good; (3) Any measures taken by the entity to reduce such impacts; (4) Violations of any federal, state, or local permits directly associated with the production or distribution of the good; (5) Whether the good conforms with the FTC’s Green Guides for specific terms; (6) If the individual uses the term “recyclable,” the chasing arrows symbol, or otherwise directs the consumer to recycle the consumer good, whether the good conforms to the new recylability criteria.
