Cowboy poet Will Rogers once said of the income tax form: You don't know if you're a villain or a martyr until after you've finished it. In California, using the word ``recycla-ble'' in advertising may make you a villain, or a martyr, depending on how the courts interpret your usage. And, of course, you won't know whether your advertising message meets the state's legal requirements until after you've presented it to the public.
Whether to place a recycling message of some kind on the label of, say, a ketchup bottle in the state of California has taken on the ambiguous character of the tax form for marketers and recycling interests as they ask for a rehearing of their lawsuit before the 9th Circuit Court of Appeals in San Francisco.
The Society of the Plastics Industry Inc. and the Association of National Advertisers are both plaintiffs in the federal case against California's tough - and, in their view, capricious - law governing commercial speech on product labels.
The California law was upheld in a 2-1 ruling of the federal appeals panel in mid-November. But, the associations believe the lone dissenting opinion of Judge John Noonan Jr. is a compelling reason for an 11-justice panel of the court to rehear their case. If California wins this case, it will be considered a sign for other states to build their own statutes on what they consider acceptable standards of commercial speech.
Until this is decided, the best speech is no speech for recycling messages on California-bound plastic containers.
My modest suggestion would be the imposition of no law at all.
In mid-November, a federal panel upheld California's labeling law as a protection against misleading advertising and recycling claims. Initially, California wanted to exercise its sovereignty by putting tight reins on the language used in recycling claims, in the absence of a federal statute that would require the same closely drawn language everywhere.
But Judge Noonan's scathing dissent noted: ``Tested by our Bill of Rights, the statute is defective.''
``The statute has one definition of `recyclable' and another of `recycled,' so that what is `recyclable' will not necessarily be `recycled,' '' he said.
Despite the state's vague legal definitions of allowable language on cans, bottles and even plastic grocery bags, misuse by marketers of terms relating to green marketing in California's law can result in criminal penalties. Three of these legal definitions use the word ``nature'' as an ``intelligible standard in an environment and economy where there is scarcely any nature independent of human intervention,'' Noonan notes.
He then cites the term ``ozone-friendly'' as another example of a failure of the written word to address a specific legal requirement. Under California law, this term can be used to refer to any chemical that will not cause ``unnatural and accelerated deterioration'' of the earth's stratospheric ozone.
Noonan responds: ``What is unnatural deterioration of the ozone? How is unnatural to be determined? The statute affords no guidance.''
Moreover, the California law makes some language that would be perfectly legal if placed on a billboard (or in a newspaper column!) totally illegal if placed on the side of a grocery bag, according to New York First Amendment lawyer Floyd Abrams, the lawyer for the plaintiffs in the case.
The law and the rulings upholding it totally have confused the plaintiff associations-and not because the law limits what claims they can make about recycling or recyclability.
They're confused because they claim the ruling seems to grant associations freedom to make environmental issue statements, but denies their members the ability to do the same.
``It draws a big red line right between us,'' said one association lawyer. ``The decision said association speech is protected, but your members' is not.''
King is Plastics News' East Coast reporter based in Washington.