Inside Track: Planning, Environment & Sustainability - In the media, In practice and courts, Cases and Legislation - Real Estate and Construction

On October 5, 2021, California’s Governor Newsom
signed Senate Bill 343 (SB 343) prohibiting the
use of the chasing arrows symbol on non-recyclable products and
packaging. Under the new law, a product or packaging that
displays the chasing arrows symbol or any other symbol or statement
indicating it is recyclable is deceptive or misleading unless the
product is “recyclable” in accordance with
California-specific regulations and is of a material type and form
that routinely becomes feedstock used in the production of new
products or packaging. The law requires the California Department
of Resources Recycling and Recovery (CalRecycle) to take steps to
evaluate and identify which materials are “recyclable” in
the state.

The adoption of SB 343 is evidence of growing focus from
legislators, regulators, and the public on environmental claims and
plastic recyclability, though the bill is not limited to plastic
products and packaging. This focus has arisen as the plastics
recycling industry is facing new opportunities and challenges
amidst global shifts in how plastics are produced, moved across
boundaries, and recycled. In addition to SB 343, the Governor
signed a number of other bills reflecting an overall focus on
reducing plastic pollution, summarized further below.

Limits on use of the chasing arrows symbol

SB 343 prohibits offering for sale, selling, distributing, or
importing a product or packaging for which a deceptive or
misleading claim about the recyclability of the product or
packaging is made. Displaying the chasing arrows symbol or
otherwise indicating the product or packaging is recyclable is
deemed a deceptive or misleading claim, unless the product or
packaging is “recyclable” and is of a material type and
form that routinely becomes feedstock used in the production of new
products or packaging. Those criteria are discussed further
below.

The use of the chasing arrows symbols or otherwise directing a
consumer to recycle a consumer good now requires that a person
using the symbol on a good that it manufactures or distributes to
maintain certain records supporting the claim. This law expands on
existing law in California that requires such records for of claims
that a consumer good is not harmful to, or is beneficial to, the
natural environment. 

The law specifies how the chasing arrows symbol should be used
and interpreted if, for example, the external packaging is
recyclable but the contents are consumable or not
recyclable. 

Evaluating recyclability in California

On or before January 1, 2024, CalRecycle must collect additional
information on materials collected for recycling and to conduct a
characterization study of material types and forms collected,
sorted, sold, or transferred by solid waste facilities. Based
on that information, a product or packaging will be deemed
“recyclable” if it is of a material type and form that
meets both of the following requirements:

  1. The material type and form is collected for recycling by
    recycling programs for jurisdictions that collectively encompass at
    least 60 percent of the population of the state; and

  2. The material type and form is sorted into defined streams for
    recycling processes by large volume transfer or processing
    facilities (or other facilities as determined by CalRecycle) that
    process materials and collectively serve at least 60 percent of
    recycling programs statewide, with the defined streams sent to and
    reclaimed at a reclaiming facility consistent with the requirements
    of the Basel Convention.

Furthermore, a product or packaging is not recyclable in
California if:

  1. It includes components, inks, dyes, adhesives, or labels that
    prevent its recyclability;

  2. It contains intentionally added chemicals identified pursuant
    to regulations implementing section 42370.2(g)(4) of the California
    Public Resources Code; or

  3. It is made from plastic or fiber containing PFAS that have been
    intentionally added with a functional or technical effect or that
    measure above 100 parts per million total organic fluorine.

Notwithstanding the requirements laid out above, a product or
packaging is recyclable if:

  1. The product or packaging has a demonstrated recycling rate in
    California of at least 75 percent;

  2. The product or packaging is not collected pursuant to a
    curbside program but the non-curbside collection program recovers a
    certain portion of the product or packaging and it has sufficient
    commercial value; or

  3. The product or packaging is part of, and in compliance with, a
    program established on or after January 1, 2022, governing the
    recyclability of that product or packaging and the director of
    CalRecycle determines that it will not increase contamination of
    curbside recycling or deceive consumers.

Affected entities could look to the above three methods for
determining recyclability to support claims that the product or
packaging is recyclable.

Use of resin identification codes

The chasing arrows symbol is commonly used with resin
identification codes on plastic products and packaging. The
resin identification code includes a digit (1 through 7)
representing the resin in the product or packaging. The
purpose of the resin identification code is to allow for proper
sorting of items by resin type, which in turn allows for effective
recycling of products deemed to be recyclable. 

When the resin identification code was initially developed by
the Society of the Plastics Industry Inc. (SPI), the symbol
included the chasing arrows triangle. In 2013, the resin
identification code symbol, now defined under an ASTM standard, was updated to include the resin
number inside an equilateral triangle with an abbreviation for the
resin shown below the triangle. The triangle no longer
includes arrows.

Several states, including California, already have legislation
requiring the use of the resin identification code, particularly on
rigid plastic containers. SB 343 in California does not affect
the requirement that rigid plastic bottles and containers sold in
the state must continue to bear the resin identification code, but
that code now cannot be placed inside a chasing arrows symbol
unless the bottle or container meets statewide recyclability
criteria.

Other states, like Delaware, continue to have requirements that
certain products include the resin code inside chasing arrows or
refer to the original SPI codes, although it is not immediately
clear how those requirements may have been affected by the
revisions to the SPI and ASTM standards. See,
e.g.
Del. Code tit. 7, § 6092La. Stat. § 30:2422D.C. Mun. Regs. tit. 21
§1002
. Companies operating in California and other
states may now face a conundrum, potentially resulting in the need
for different labeling in different states.

Under the Federal Trade Commission Green Guides, the chasing arrows symbol may
constitute a recyclability claim depending on how it is used, so
even in states that may require the chasing arrows symbol,
companies should only use it in an inconspicuous manner, unless the
product or packaging is recyclable. The new California law
goes further to deem any use of the chasing arrows symbol a
recyclability claim in the state. The FTC intends to begin an
update of its Green Guides in 2022, and the developments under SB
343, and the risk of conflicting mandates from other states, will
undoubtedly result in significant revision to the Green Guides’
existing provisions with respect to plastic recyclability claims
and markings.

Related bills in California

Other bills signed along with SB 343 reflect the state’s
efforts to combat plastic pollution and to advance environmental
goals. They include, among others: a law classifying exporting
plastic waste as disposal rather than diversion through recycling
(Assembly Bill 881); a law limiting the use of
compostability claims (Assembly Bill 1201); a law further restricting
the provision of certain single-use plastic products (Assembly Bill 1276); two laws updating the
requirements for beverage container recycling (Assembly Bill 962 and Assembly Bill 1311); and, two laws addressing
the presence of per- and poly-fluoroalkyl substances (PFAS) in
products and packaging (Assembly Bill 652 and Assembly Bill 1200). Senate Bill 54, which would have required that
all single-use packaging and food service ware be recyclable by
2032, did not pass this year but could be revived again in coming
years.

Related developments in other states

While SB 343 is reportedly the first law of its kind, similar
proposals have been introduced by legislators in several other
states. In Oregon, Senate Bill 581 included a similar
proposal to limit the use of the chasing arrows symbol to
recyclable products. That bill was revised to instead propose
a “Truth in Labeling Task Force,” which was then
established with the adoption of Senate Bill 582. While the new Oregon law
does not outlaw the use of the chasing arrows symbol, it does
repeal the requirement that rigid plastic bottles and containers
include the chasing arrows symbol.

In New York, Senate Bill S7375 and Assembly Bill A7668 are pending bills that
would prohibit the sale of products or packaging for which a
deceptive or misleading claim about the recyclability of the
product or packaging is made. They would have the New York
Department of Environmental Conservation develop regulations to
determine the types and forms of plastic products and packaging for
which a recyclability claim (including the use of the chasing
arrows symbol) can be made. 

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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