California eyes limits to recyclability marketing that could hit PP, thermoformed packaging

With surveys showing the public thoroughly confused about what can and can't be recycled, California lawmakers aim to get much tougher around recyclability marketing claims for plastic packaging.

A bill that would sharply limit those claims, including when the chasing arrows symbol can be put on packaging, has passed the state Senate by a wide margin and is making its way through the Assembly, where it faces a Sept. 10 deadline to pass.

The group Californians Against Waste called it the "country's strongest protections against deceptive recyclability claims," and supporters said it would build up markets by creating cleaner recycling streams.

"This bill gets at misleading recycling symbols placed on products that don't actually indicate real recyclability," said state Sen. Ben Allen, D-Santa Monica, the lead author.

Allen opened one recent hearing on the legislation by pointing to confusing chasing arrows messaging on plastic newspaper bags, which can contaminate recycling streams if they're mistakenly put in curbside bins.

But Allen's proposal is drawing opposition from plastics groups, who say they recognize public confusion but also fear one provision will unintentionally hurt their plans to build up viable recycling streams for PET thermoforms and polypropylene packaging.

As well, another part of the bill that would directly impact plastics companies would limit the use of the chasing arrows symbol in the resin identification code on bottles and containers.

The legislation, called Senate Bill 343, is attracting significant attention.

Environmental groups have mounted phone banking, canvassing and social media campaigns to build support, and the Plastics Industry Association said Aug. 26 that its top state government specialist was in California for a week working on the bill.

"We anticipate a number of amendments in committee and on the floor, so the legislation is likely far from a finished product," said Shannon Crawford, director of state government affairs at the association, in a statement.

Nick Lapis, the director of advocacy at CAW, said there are talks about making reporting requirements for companies simpler, which he called a "reasonable compromise."

It passed the state Senate on a 31-6 vote in June.

Beyond reforming use of chasing arrows, the legislation starts a regulatory process that could lead to some major plastic packaging materials, like polypropylene, unable to be labeled as recyclable in the state.

It directs the state agency CalRecycle to create a list, by Jan. 1, 2023, of what can and can't be labeled recyclable.

It's that provision that's drawing particular concern from business groups like the plastics association and the packaging group Ameripen.

They worry that CalRecycle will decide that only PET and high density polyethylene bottles have strong enough markets to carry recycling labels, leaving out PP packaging and thermoforms.

"SB-343 … will limit strong and viable recycling markets in the state, specifically of PET thermoforms and polypropylene," Crawford said in July testimony to the state Legislature.

She and other industry lobbyists say they believe CalRecycle would follow the lead of the California Statewide Commission on Recycling Markets and Curbside Recycling, a study group created by the state Legislature in 2019.

In its first formal report, delivered in June, that group echoed SB-343's calls for stricter labeling. And importantly, it recommended that within plastics, only PET and HDPE bottles be marketed as recyclable and use chasing arrows symbols.

Crawford said the plastics association is "very concerned" Allen's legislation adopts some of the commission's criteria and would result in CalRecycle declaring "only PET and HDPE bottles as recyclables."

"PET thermoforms or clamshells, which carry so much of California's fresh produce, would not be considered recyclable, and neither would polypropylene, which has material qualities making it the preferred resin for a variety of food," Crawford said.

It would have the "unintended" impact, she said, of "less recycling and more materials going to landfills."

Industry groups have been working on programs to boost PP and PET thermoform clamshell recycling.

The Recycling Partnership, for example, announced Aug. 24 that an industry-funded effort on PP had spent $4.2 million in the last year to improve PP curbside recycling access for 15 million Americans.

"Real solutions can only be achieved by an emphasis on developing end markets," Crawford said.

But advocates for Allen's plan pushed back on some of the industry points, with one lawmaker responding to arguments it would unintentionally send more materials to landfills.

"There was a comment about this bill leading to more stuff being landfilled," said Assembly Member Cristina Garcia, D-Downey. "The reality is that most of this stuff is already being landfilled or burned or being shipped out where we're pretending to recycle it.

"That's a false narrative we need to get beyond," she said.

Recycling rates for PP and PET thermoforms are low. EPA figures say about 3 percent of PP packaging in the U.S. is recycled.

And an industry report this year estimated that about 9 percent of PET thermoforms get recycled nationwide.

Allen pointed to a recent survey of California cities that found 70 percent of them planned to raise waste collection rates as much as 20 percent, and he said California recycles just 15 percent of its plastic packaging.

"Our constituents are already paying money to Band-Aid over our broken system," he said.

Allen told his fellow lawmakers that he hopes the bill's "truth in labeling approach" helps shift packaging to more recyclable polymers like PET and HDPE, plastics 1 and 2 in the resin ID code.

"We should be doing everything we can, to the extent possible, to encourage producers who are in the plastics space to produce their products using the 1s and 2s, which are highly recyclable" Allen said.

"At the end of the day, most of the items with a 3-7 number ... most of them are technically recyclable under perfect conditions, but for a variety of reasons, they are just not being recycled," Allen said.

He said the legislation includes flexibility if a company using a less recycled plastic material can point to markets developing.

"There is flexibility that we offer [in the bill], but we just want to make sure that the items are really being recycled," Allen said.

But some lawmakers expressed skepticism about Allen's proposal, arguing it would raise costs if companies had to do California-specific packaging to meet any new labeling or recycling restrictions.

"If we're going to separate ourselves from everyone else, there's a cost to doing that," said Assembly Member Kelly Seyarto, R-Murrieta. "That cost is added on to the cost of living here, which is already higher than a lot of different places."

Lauren Aguilar, a lobbyist with Ameripen, echoed concerns that SB-343 would cause CalRecycle to do what the state commission did and only allow a small number of plastics to carry recyclability marketing labels.

"We expect CalRecycle to reach a similar and extremely limiting list," she said.

The commission said only eight paper products — two glass, two metals and PET and natural and colored HDPE bottles — should carry recyclability labels.

The head of that state commission told lawmakers that it's important to pass SB-343 because consumers are frustrated by confusing labeling and California has a chance to lead a national debate.

"California must not be held back by other states that allow confusing and misleading labeling," said Heidi Sanborn, who chairs the recycling commission and is executive director of the National Stewardship Action Council. "We hope to set the standard for the nation."

In a more technical provision that directly impacts plastic firms, the bill would also prohibit using the chasing arrows as part of the resin identification code for plastic packaging, unless that packaging type is certified as recyclable by CalRecycle.

On that point, the plastics association and California state officials seem to be in general agreement.

But one challenge, they say, will be changing state laws across the country that currently require chasing arrows in the resin ID code on plastics.

"This legislation has started an important conversation on the resin identification code, or RIC," PIA's Crawford said. "Unfortunately, 30 states still require that those codes be placed inside three chasing arrows, creating significant confusion."

In 2013, an industry technical committee recommended replacing the chasing arrows with a triangle, but state laws were not changed to reflect that.

Crawford said the plastics association would work to change those laws.

"We sincerely appreciate the authors' amendment, which allows our industry additional time to work with these other states and our members additional time to comply by updating our molds," she said.