New law takes targets truth in advertising - especially plastics - Capitol Weekly | Capitol Weekly

Instead of continuing to mislead consumers that their used plastic is getting repurposed, now only truly recyclable materials will bear the chasing arrows symbol or the word ‘recyclable.’

 In September 2021, the California Legislature passed “The Truth in Labeling for Recyclable Materials” bill, SB 343, which Gov. Gavin Newsom signed into law that October. Taking effect on Jan. 1, 2024, the law targets inaccurate and misleading product labeling to eliminate confusion about which plastics are recyclable and which are not.

Approximately 85% of single-use plastics in California never get recycled. By standardizing and clarifying the labeling of recyclable waste, the law aims to align manufacturing standards with state regulations in order to increase the amount of plastic material that actually gets recycled. Only truly recyclable materials will bear the chasing arrows symbol or the word ‘recyclable.’

Putting the wrong trash in the right bin, or trash you cleaned insufficiently, contaminates the true recyclables.

Consumers mistake many products for recyclable products because of misrepresentative labels. Plastic milk jugs, plastic shampoo bottles, medicine bottles, ketchup bottles, dental floss dispensers, peanut butter jars, the tray from microwaveable meals—many of these products’ packages are marked with the recognizable triangular logo composed of three clockwise arrows, called the “chasing arrows.”

Some product labels say things like “Eco-friendly” on them, so when people see those chasing arrows, they toss items in the blue bin, but market forces dictate which materials actually get recycled and which end up in landfills. The numbers inside the chasing arrows, called “resin identification code,” tells the truth about materials’ recyclability, and that truth has been unclear. SB 343 aims to fix this.

Putting the wrong trash in the right bin, or trash you cleaned insufficiently, contaminates the true recyclables, which contaminates what’s known as the recycling stream. Mixing them makes it more difficult, and more expensive, for waste facilities to sort and clean the actual recyclables. It can be hard to clean the oil residue from the salad dressing bottle and all the peanut butter from the jar.

“Consumers want to do the right thing, but we aren’t plastic experts.” — Amy Wolfrum,

But consumers’ improper cleaning of waste is not the main reason that most plastic ends up in the landfill or ends up polluting our oceans, parks, and communities. The reason is because the market for certain kinds of plastics is too low, and costs too high, to get them repurposed, and plastic manufacturers haven’t contributed enough to make sure their products get recycled. Consumers have been operating as if their recycling system was efficiently repurposing more plastic than it has been.

“Consumers want to do the right thing, but we aren’t plastic experts,” Amy Wolfrum, Senior Manager of California Ocean Policy at Monterey Bay Aquarium, told me.

Wolfrum is a long-time recycler. It was only when she started working at the Aquarium in 2017 that she learned how little of her recycling got recycled. “That was extremely upsetting for me to discover,” she said. “Consumers are trying their best, and it is devastating to find out that what you’ve been putting in your blue bin is not actually getting recycled.”

Every morning, state Sen. Bill Allen (D-Santa Monica), the bill’s author, would remove the plastic sleeve that covered his newspaper, and he would toss the sleeve into the blue recycling bin outside his Santa Monica house. The sleeve had the triangular recycling symbol on it. That seemed to indicate that it was recyclable plastic, but Allen eventually found out that this sleeve was not, in fact, recyclable.

“It is technically recyclable under the best of conditions at 1,000 degrees in some lab in San Marino,” Allen told the Assembly Natural Resources committee hearing in June, 2021. “But they’re not recycled in the real world.”

This is called “wishcycling,” when consumers’ good intentions about recycling butt up against the complex reality of the recycling system.

Creating truth in labeling is a simple idea on the surface: Clearer product labeling leads to clearer consumer behavior, and when consumers know what waste they should sort into their blue bins, that improves the recycling process’ effectiveness. Clearer labeling can also reduce the purchase of certain problematic plastic products, because consumers can use product labels to decide what to buy or not buy in the first place to avoid creating pollution. This all largely comes down to that recognizable recycling logo.

“The law simply says that manufacturers can’t call something recyclable if it isn’t.” — Nick Lapis

Specifically, SB 343 prohibits the use of the chasing arrows symbol and any related phrases and suggestions about recyclability, on products and packages unless they are truly recyclable. Companies must now back up such advertising claims as “Earth friendly,” “ecologically sound,” “environmentally safe,” and “environmental choice” with clearly defined documentation. Otherwise, they must remove those claims from their product. It’s either getting recycled or it’s not.

So far the idea of recyclability has come down to a material’s physical properties—the potential for it to get recycled. Yes, biochemically, processes exist to recycle plastics with every resin number, but true recycling has to do with business’ willingness to spend money to actually recycle it. Calling a product recyclable in California will no longer strictly be a description of a material’s potential.

“Consumers deserve to know the impact of the product packaging that they’re purchasing,” Wolfrum told me. “And many of us would make purchasing decisions based on the end of life of that packaging, meaning, is it going to be actually recycled, reused, or refilled? Or is it going to end up potentially mismanaged and end up in the environment?”

Environmental groups and organizations such as  the Sierra Club and The Monterey Bay Aquarium support the law and its role in the state’s larger efforts to reduce plastic waste. The environmental group Californians Against Waste co-sponsored the bill with the National Stewardship Action Council. “SB 343 does not ban any products,” Nick Lapis, the Director of Advocacy at Californians Against Waste and the architect of many of the state’s recycling policies, told me. “The law simply says that manufacturers can’t call something recyclable if it isn’t.”

The illusion of recyclability
Verifying recyclability is a long-standing issue. In theory, America’s local recycling systems were meant to reduce the amount of waste that ended up in landfills by increasing the percentage of material that got repurposed as new products.

China no longer accepts America’s trash, and California’s initial recycling law didn’t apply to the chasing arrows symbol.

“The plastics industry came up with this idea of putting chasing arrows on products,” Lapis told me, “because they identified that people wanted to feel less guilty about the all the disposable products and packaging that they are buying. There was a very intentional effort by the plastics industry to go state-by-state to pass legislation requiring chasing arrows on plastic products. In California, we had a law going back to the 1990s that required recyclability claims be verified. Basically, the law said that in order to call a product recyclable, it must meet the Federal Trade Commissions’ Guides for the Use of Environmental Marketing Claims, which stated that 60% of the population had to have access to curbside recycling of a product before a manufacturer could claim it was recyclable. That was groundbreaking legislation back then.”

It also set the state up for problems.

“The problem with California basing our recyclability law on the FTC guidelines,” Lapis said, “is that the FTC guidelines are based almost exclusively on access. The FTC’s 60% threshold is interpreted as whether a community accepts a product in their recycling bin. That broad guideline led a lot of companies to lobby to get their products accepted into blue bins so that they could call themselves recyclable, too. Folks like the foam manufacturers went city to city in California trying to get people to add expanded polystyrene takeout containers into the recycling programs. They did it in Sacramento, in L.A., in San Diego, because they wanted to hit that magic 60% number.”

Because communities used to send so much of their recyclables to China to get processed — where anything could happen to it — communities could call also claim many kinds of material were recyclable and claim that their communities had high rates of recycling, based on the amount of material that they kept out of landfills. But that didn’t mean those materials were actually getting repurposed into new materials.

China no longer accepts America’s trash, and California’s initial recycling law didn’t apply to the chasing arrows symbol.

What is also clear is that companies selling single-use disposable packages worked hard to shift the responsibility of reducing waste from themselves to consumers.

SB 343 changes and expands the criteria to include the chasing arrows,” Lapis said. “The goal is really to change the paradigm from ‘recyclable’ means that a product is ‘capable of being recycled’ to only using that term for things that will actually get recycled if somebody puts them in their bin at home. That is going to affect  consumers and manufacturers in the hopes of creating a more circular economy.”

It’s unclear whether plastic manufacturers and other companies with vested interests intentionally mislead consumers or simply did little to clarify their products’ true end of life. What is clear is that consumers are confused, and too many consumers still believe that what goes in their blue bin stays out of the landfill.

What is also clear is that companies selling single-use disposable packages worked hard to shift the responsibility of reducing waste from themselves to consumers. They placed the onus on their products’ end-users. We had to reduce pollution. We had to curb waste.

“It’s hard to imagine that recycling labeling wasn’t a very intentional ploy to sell more stuff,” said Lapis. “The Story of Plastic is a recent film by one of our close partners that really delves into this. One of the points the film makes is that when companies first started marketing products like disposable dishes, they actually had to create ad campaigns telling people to throw the dishes away, because people would wash them and reuse them. They had to teach people to turn the products into trash. Their whole business model depends on selling more, and one way to achieve that is to reduce the guilt of consumption, so I think it’s pretty clear that it was intentional.”

This spring, California Attorney General Rob Bonta issued a subpoena to ExxonMobil to investigate the petrochemical company’s role in causing the world’s plastic pollution crisis, and to determine how aware they were that their supposedly recyclable plastic products were not recyclable and how they chose to market them that way anyway. “For more than half a century,” Bonta wrote in a statement, “the plastics industry has engaged in an aggressive campaign to deceive the public, perpetuating a myth that recycling can solve the plastics crisis. The truth is: The vast majority of plastic cannot be recycled.”

This is part of Bonta’s larger, industry-wide investigation into petrochemical’s culpability, and a sea change in the way California treats plastic recycling.

“The attorney general takes a long time before issuing an indictment, so we are still waiting for the other shoe to drop,” Lapis told me. “There are a lot of parallels between plastics and the deceptive practices of the tobacco industry and oil companies—they knew all along that their products were harmful but actively funded efforts to deceive the public. Similarly, the oil and chemical companies knew that most plastic wasn’t getting recycled and, instead of investing resource to actually get it recycled, they spent millions of dollars lying to consumers. It’s valuable to look at the history of things like the so-called ‘Crying Indian’ PSA by Keep America Beautiful, one of the most famous PSAs in history, outside of Smokey the Bear.”

“Instead of telling manufacturers to stop creating polluting products, the corporate message was ‘don’t litter.’” — Nick Lapis

Keep America Beautiful is a trade group presenting itself as a nonprofit anti-litter group. It was composed of American soda manufacturers, bottle and can makers, and fast food companies, along with governmental agencies and other nonprofits, making it representative of manufacturing interests—the very sources of polluting products. Their PSAs skillfully performed greenwashing on a massive, historic scale. Tobacco companies even joined and funded the organization, helping influence policy around smoking bans in favor of volunteer cigarette butt cleanups.

On Earth Day in 1971, Keep America Beautiful launched their most infamous campaign. In it, an Italian-American actor named Iron Eyes Cody, wearing braids and buckskin, paddles a canoe through a waterway, marveling at the way some people respect the natural world, and some don’t. When a passing car tosses a bag of trash at him, Cody turns to the camera with a single tear rolling down his face. “People start pollution,” the narrator says. “People can stop it.” The horrible irony is that the people marketing this idea to Americans were the ones who made their living selling the disposable products that caused pollution. Their marketing was meant to convince consumers that reducing pollution was a personal responsibility, not a corporate responsibility. It worked.

“Even to this day,” Lapis told me, “you look at many of the news articles about recycling, and there’s always somebody in the comments who calls this an issue of personal responsibility, saying something like ‘People need to stop littering.’ That idea has deep roots in the American conscience.” Many other PSAs followed. “Instead of telling manufacturers to stop creating polluting products, the corporate message was ‘don’t litter.’ Remember the ‘give a hoot, don’t pollute campaign?’ These were all designed to make people think of pollution purely as a personal choice.”

The chasing arrow on the bottle says its recyclable, so you toss it in the blue bin.

SB 343 works to circumvent that misleading corporate message and consumers’ misunderstanding about responsibility to put the onus back on the companies who create and market the materials that become waste.

“In terms of consumer purchasing, many studies have shown that consumers prefer recyclable packaging,” said Lapis. “What the consumers will choose will, in turn, lead to manufacturers choosing to use recyclable packaging.”

Creating new recycling markets
Look at your own life. California is hot. You’re thirsty. You buy a bottled drink. The chasing arrow on the bottle says its recyclable, so you toss it in the blue bin and you quench your thirst while quenching your desire to be a conscientious consumer. Unfortunately, you can still make the wrong choice.

Drinks often come in what’s called PET bottles. A kind of plastic, PET is an abbreviation of polyethylene terephthalate, which is the chemical name for polyester. PET bottles carry a number one resin code, which means they’re easily recyclable. Unfortunately, some brands put a vinyl wrap on some of their drinks, which complicates recycling. So does the plastic’s color. “Only clear plastic bottles are really recyclable, with some small markets for green plastic,” said Lapis “Even though plastic bottles are largely recyclable, the ones that are any other color will not get recycled.”

See how confusing?

The reason certain products with certain resin numbers get recycled less than as others is because recycling is market driven. Manufacturers have control over what gets recycled. Recycling depends on whether or not a business is willing to buy the waste product—be it the virgin plastic or the recycled plastic—to turn into recycled content.

Creating that circular economy will require a lot of manufacturers working together to handle the material.

“There’s nothing magical about the various resin numbers,” Lapis said. “Some are definitely a lot harder to recycle than others, like film plastics, which are a logistical nightmare. They get stuck in machinery and blow out of trucks. Also, PVC tends to be difficult for a lot of recycling processes.”

In most cases, creating that circular economy, where manufacturers buy their own products back to repurpose them into new consumer goods packaging, will require a lot of manufacturers working together to handle the material and also to pool their resources to create the mechanical infrastructure required to recycle that.

“The Styrofoam companies have always claimed that their products are recyclable,” Lapis said. “Sure, if you have enough of it in one place, it is recyclable. But in real life conditions, that Styrofoam is not worth the cost of transporting—it’s basically air—not to mention the logistics and cost of trying to separate it, and how pieces of it blow all over the place and get destroyed in the process.”

Revised criteria for recyclability will do numerous things.

First, it requires manufacturers to remove the arrows from some of their products. That’s quick and easy. They simply create new molds to pour liquid plastic into in their factories. Second, revised criteria may motive some manufacturers to create new markets for certain kinds of plastic with certain resin codes. That’s a more time-consuming, and potentially costly, process. Third, it will reduce the number of products on store shelves that tell consumers they’re recyclable, and those remaining products will be accurate and reliable. With fewer misleading choices, consumers can make more informed purchasing decisions. So when you’re thirsty but still don’t want your beverage to end up in a landfill, you can hopefully search for the beverage with a trustworthy chasing arrow.

The California Department of Resources Recycling and Recovery, known as CalRecycle, is working hard at the state’s recycling facilities to create a list of commonly recovered materials that will help determine statewide criteria for labeling products “recyclable.” After the final list is completed, manufacturers will have 18 months to bring their products into compliance. Consumers could see changes on store shelves by 2025.

Criticism and opposition
Organizations in the manufacturing and waste sectors have criticized the bill for its potential effects, which they claim could include increasing the amount of waste in landfills and increasing the cost of creating consumer packaging. In a piece for Capitol Weekly, Lance Hastings, President and CEO of the California Manufacturers and Technology Association, wrote:

“The problem is the packaging and products banned from including recyclability information on the label are often in fact recyclable and are being recycled in increasing quantities today based on increasing investments by manufacturers and recyclers/processors who see a need to help fill the gap with these hard and often under-recycled packaging and consumer products. Such investments go beyond just curbside programs and include new options for manufacturer subsidized mail-back programs and retail drop off locations. To that end, just because these items may not be recycled within the current curbside construct doesn’t mean they aren’t recyclable and being recycled.”

But again, that idea about potential recyclability is the point: ‘Recyclable’ should no longer mean ‘able to get recycled.’ It has to mean ‘actually gets recycled.’

What happens in California potentially happens elsewhere.

Retail drop-off is not a large scale or efficient enough program to curb plastic pollution. The fix must move inside facilities. And no matter how much more material stakeholders claim is “being recycled in increasing quantities today,” that rate is not increasing quickly enough to mitigate the increasing volume of waste that continues to enter the ocean and other environments.

Now is the time to ask: Are recyclers actually looking for ways to recycle certain resin numbers? Do they think they actually will find ways to? And when? We’ve all had a lot of time. Why trust that manufacturers will find those ways and markets now? Time is the problem: too much time has been spent producing and polluting, not recycling.

California as a world leader
The goal of SB 343 is to fix the large impact of a broken system. If California were its own country, it would rank as the world’s fifth largest economy, bigger than India. The bill can also provide a model and test case for how other states and countries can improve their recycling systems, too. What happens in California potentially happens elsewhere.

“That is certainly the conventional wisdom for environmental policy,” said Lapis. “After California passed the California Clean Air Act, a number of other states passed their own versions. Then it passed nationally as the Federal Clean Air Act. California has a history of trying new difficult things that get replicated around the country and, subsequently, around the world.”

As Wolfrum said, consumers are trying their best. Research supports this notion. But large-scale policy shaping manufacturing and waste processing has a much greater impact than consumer behavior alone. Manufacturers have had more than enough time to increase their products’ rate of recycling.

The ocean is already filled with plastic trash. According to the World Economic Forum and the Ellen MacArthur Foundation, by 2050, the ocean will contain more plastic waste by weight than it will contain fish. California is taking major steps to drastically reduce plastic pollution.

There is no more time to waste.

Editor’s Note: Aaron Gilbreath, author of “The Heart of California: Exploring the San Joaquin Valley,” is a regular contributor to Capitol Weekly.

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