California cracks down on recyclability marketing, pushes for national debate

California lawmakers passed a bill in the closing days of their session in early September that significantly tightens recyclability claims around plastic packaging, a vote that some see as adding momentum to calls for tougher national rules.

The legislation would limit use of the chasing arrows symbol and give the state agency CalRecycle the power to decide what packaging could — and could not — be labeled as recyclable.

It's that last step that has potentially the most far-reaching implications.

Environmental groups say it will clean up labeling that misleads the public, but industry groups fear it creates strict rules that will hurt plans to grow recycling of products like flexible packaging, films and polypropylene packaging such as yogurt containers.

As well, some see it as adding to momentum for a stronger national approach around recycling labeling, with the Federal Trade Commission announcing this summer it plans to rewrite its Green Guides marketing rules in 2022, the first update in a decade.

"With the Green Guides being rewritten next year, California has jumped the gun on what should be a national approach," said Alison Keane, president and CEO of the Flexible Packaging Association. "Packaging and products are not made for California or its recycling system; they are made to sell nationally."

FPA said it's very concerned the California legislation, known as Senate Bill 343, will hurt recycling of flexible materials like plastic films, bags, e-commerce packaging and pouches, including at drop-off locations in stores.

Supporters, however, see the legislation fixing a huge problem: confusing and sometimes misleading recycling labeling that causes people to put too many things into curbside bins that ultimately can't be recycled, lowering recycling rates and costing cities money.

"This is ultimately a truth in advertising bill," said state Sen. Ben Allen, D-Santa Monica, its main author. "It will ensure that it will end consumer confusion about what is recyclable, improve recycling efficiency, reduce contamination and ultimately costs for our ratepayers."

Another key legislative supporter, Assembly Member Lorena Gonzalez, D-San Diego, said current rules too easily allow recycling claims that make "a company's brand look green-friendly," even if the packaging can't be effectively recycled.

"We don't want people throwing in plastics that maybe five years from now we'll have technology to recycle," she said in comments on the Assembly floor Sept. 8. "It's dishonest. It's not the interest of consumers or companies to allow it. And it's certainly not in the interest of our goals to reach recycling rates for single-use plastics."

Allen, in comments on the Senate floor shortly before a Senate vote Sept. 9, also said he wanted address concerns that had been raised about the bill's impact on store drop-off programs for plastic bags.

He said the legislation does not shut down voluntary store recycling, and he said he was "committed to leaning in and working with the film sector to increase the amount of film collected and recycled."

While it's too soon to say what materials CalRecycle could put on its statewide recyclables labeling list, there's an expectation among both industry groups and some lawmakers that only PET and high density polyethylene bottles would meet the criteria, given current conditions in recycling markets.

The Legislature's own analysis prepared for the bill said only PET and HDPE bottles are commonly recycled and likely only those two packaging types could be labeled as recyclable, among plastics.

Other resins "are generally not recycled" and must be landfilled or incinerated, it said.

"Potentially, hundreds of companies would be required to change their labeling practices on their products, especially those made from resins No. 3-7," the California legislative report said.

The report also noted that China's National Sword program, which sharply limited exports of lower-value plastics and paper, upended the economics for local waste management programs.

"Recyclables that used to generate money now have no market," the report said, noting that California historically exported two-thirds of recycling collected in curbside bins.

But industry officials said they worry that the law would hurt their efforts to build up recycling for materials they see having strong potential to develop, like polypropylene packaging and PET thermoforms.

"A number of common plastic products like yogurt cups and microwavable trays would be deemed unrecyclable and, therefore, would be landfilled," said Matt Seaholm, vice president of government affairs at the Plastics Industry Association in Washington, in a statement.

"4.5 million tons of polypropylene would now be landfilled as a result of this legislation," he said. "All of these products and many more are not only recyclable but are currently recycled in California."

The association released a list of items it said was currently recycled in California and that it feared would be deemed unrecyclable by SB-343. That included many kinds of bags, including retail, newspaper, bread and produce bags, as well as film packaging wrap, yogurt and ice cream containers, prescription bottles and things like shipping envelopes and bubble wrap.

"SB-343 puts more plastic in landfills, not less," said Seaholm, who urged Gov. Gavin Newsom to veto the bill.

But supporters of the legislation pushed back, noting that only about 15 percent of plastic packaging in the state is recycled now. And that rate is lower with some popular types of resins — only 3 percent of PP packaging nationwide is recycled, according to the Environmental Protection Agency.

Allen said in hearings that he hopes the legislation pushes companies to shift to more recyclable resins, specifically PET and HDPE.

The legislation sets a 60 percent threshold for declaring a package recyclable, basically requiring it must be collected in curbside recycling programs or sorted by material recovery facilities covering 60 percent of California's 40 million people

Assembly Member Cristina Garcia, D-Downey, said the legislation is flexible, giving companies until 2025 to hit the 60 percent target, giving extensions if progress is being made and exempting products with current producer responsibility programs such as mattresses.

As well, the bill seems to set a higher standard in the future for materials outside the curbside system, requiring them to have 75 percent of the packaging to be recovered by 2030.

Some industry officials said that could put store drop-off programs, used for plastic bags and films, under stricter rules and they see the legislation weakening the popular How2Recycle labeling program.

FPA's Keane said the legislation "effectively kills" the use of the H2R label "at least for store drop-off and component labeling."

"H2R is one of the most useful labels for … consumer education on recyclability and one that is widely used and accepted across the country," Keane said. "While [the legislation] purports to decrease consumer confusion, FPA believes it will only add to it. With no recyclability instruction at all on most packaging, the only outcome is more landfilling of potentially recyclable goods."

But others see a shift to the state government making decisions on recyclability labeling as a good move.

"SB-343 will make the state of California CalRecycle agency into 'the deciders' of what is recyclable," said Jan Dell, founder of the environmental group The Last Beach Cleanup and a member of a California state government recycling advisory panel.

She said the H2R program has not been strict enough, calling it "a greenwashing scheme that made contamination of recycle bins worse by labeling thousands of worthless plastic products as recyclable."

Dell said she hoped the labeling legislation leads to California playing a similar role nationally that it's played with other environmental problems, like eliminating lead paint and setting automobile mileage standards to cut pollution.

"Hopefully SB-343 will be the turning point for bringing truth to product labeling across the country," she said.

However, the head of the American Institute for Packaging and the Environment, an industry group, said he believes SB-343 will increase consumer confusion and have the "unintended consequence" of sending more materials to landfills.

"State labeling and recyclability policies should align with national standards, especially for packaging that is distributed nationwide," said Dan Felton, executive director of Ameripen. "Improving packaging recycling and reducing contamination requires widespread, consistent consumer education and this bill will do the opposite."

The legislation passed by a wide margin and some environmental groups supporting it believe Gov. Newsom is likely to sign the bill by an Oct. 10 deadline.

It passed the state Senate on its final vote Sept. 9, by a margin of 29-7, after passing the state Assembly a day earlier, on a vote of 50-3, with 27 lawmakers not voting.

In the Sept. 8 Assembly debate, the Democratic-led bill had bipartisan statements of support, with Assembly Member Devon Mathis, R-Visalia, saying that waste management companies in his district supported it.

"I think the bottom line here, the big academic, corporate term, is corporate social responsibility. It's owning up, it's doing the right thing and using the labels correctly," Mathis said.

The environmental group Californians Against Waste said currently local governments and taxpayers pay the cost of misleading labeling.

"Manufacturers have been able to lie to consumers for far too long, and this bill will finally hold them accountable for actually making their products recyclable," said Nick Lapis, CAW's director of advocacy.

The Legislature also passed several smaller plastics-related bills and sent them to Gov. Newsom's desk.

One of them, Assembly Bill 1276, would expand the state's plastic straws "upon request" law to other single-use plastic food and beverage products for takeaway foodservice.

Another bill, Assembly Bill 962, modifies the state's bottle bill to include reusable containers. It removes a requirement that containers collected for recycling must be crushed and allows them to be transferred to a washer approved by the state government.

A third bill, Assembly Bill 1201, would prohibit plastic products from being labeled compostable or home compostable unless they meet specific criteria. The materials also must not have any perfluorinated and polyfluorinated substances (PFAS) added to them.

Lawmakers also passed a bill that would make it the first state to limit plastic waste exports by not making it harder for local governments to count those exports as recycled materials.