A law adopted by the California State Legislature in October 2021 creates new requirements for the labeling of packaging that is intended to be disposed of in the blue curbside recycling bins used by California residents, which places new demands on manufacturers and retailers, potentially subjecting them to liability.
Under California Senate Bill 343 (SB 343), only approved packaging is permitted to include the widely recognized “chasing arrows symbol” that has typically been understood to classify a product as recyclable. While there will be a grace period for compliance and the California Department of Resources Recycling and Recovery (CalRecycle) will need to publish additional information in support of the new requirements, manufacturers of recyclable packaging should be prepared to assess these new restrictions and requirements and evaluate the materials and labeling used in their packaging.
California already has a Truth in Environmental Advertising law in place that was enacted to prohibit the use of words such as “recyclable,” “biodegradable,” and “ozone friendly” on products that do not meet these descriptions. The use of such words can trigger liability under laws prohibiting untruthful, deceptive, or misleading claims. Despite existing laws intended to restrict improper labeling, proponents of additional restrictions raised concerns that too many non-recyclable products still end up in the recycling stream, resulting in a less efficient system. They believed this to be largely because the “chasing arrows symbol” is commonly associated with recyclability.
The new bill amends the Truth in Environmental Advertising law to prevent the use of the chasing arrows symbol on products that are not considered by the state to be recyclable. With the passage of SB 343, improper use of the chasing arrows symbol is also considered a deceptive or misleading claim.
Under the bill, products are considered recyclable if the product or packaging is of a material type and form (1) collected by curbside recycling programs that account for at least 60% of the state’s population and (2) sorted into defined streams for recycling processes that serve at least 60% of statewide recycling programs. CalRecycle is to develop and maintain, by January 1, 2024, information on its website that indicates which material types and forms qualify. There is a grace period for products or packaging manufactured within 18 months of CalRecycle’s publishing of this information.
In addition to the new substantive requirements, the law imposes new recordkeeping requirements. Manufacturers who use the chasing arrows symbol or otherwise direct consumers to recycle their goods are required to maintain records to support the validity of the recyclability representations, including the reasons the manufacturer believes the representation to be true and any significant adverse environmental impacts the production, distribution, use, and disposal of the goods may have, among other information. This information must be available to the public upon request.
While SB 343 provides a two-year lead time for CalRecycle and an 18-month grace period, there may be planning and development for some companies that will still be constrained. Manufacturers making claims on packaging regarding environmental benefits or recyclability, including the chasing arrows symbol, should be reviewing such claims and their recordkeeping with respect to the information outlined by the law. Those that do not comply with the new requirements of SB 343 will be subject to potential misdemeanor charges punishable by imprisonment or fines of up to $2,500. The new law and the information developed pursuant to SB 343 may also generate consumer litigation.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Los Angeles
James J. Dragna
Rick R. Rothman
David K. Brown
San Francisco
Ella Foley Gannon
Washington, DC
Kathleen M. Sanzo