A push for Washington to police the ‘Wild West' of plastics recyclability

National Harbor, Md. — A recycling group and environmentalists want Washington to be much more aggressive in policing claims about the recyclability of plastic packaging, and they're looking to the Federal Trade Commission to get the ball rolling.

The FTC is expected this year to launch a rewrite of its environmental marketing rules for what companies can say on packaging, also known as the Green Guides.

At the recent Plastics Recycling Conference in National Harbor, one plastics group said it hopes the once-in-a-decade revamp of the Green Guides will lead to more enforcement in Washington and, ultimately, a less contaminated stream of recyclables.

"The FTC guidelines can really, in our opinion, have a major, major impact," said Steve Alexander, president and CEO of the Association of Plastic Recyclers. "It's the Wild West out there. ... We have to put some speed limits on the Autobahn."

Labeling is a hot topic in the plastics recycling world now.

For example, Keurig Dr Pepper Inc. in February tentatively agreed to a $10 million settlement of a federal class-action lawsuit over recyclability claims for its polypropylene K-Cup coffee pods, as similar lawsuits make their way through the courts.

As well, California state legislators last year passed a tough law that limits use of the chasing arrows and other green marketing claims. Some see the legislation, called SB-343, as the first step in pushing more national action.

What exactly that could look like is very much up in the air, but some see the first update to the FTC Green Guides since 2012 as an important step.

Alexander, speaking on a panel at the recycling conference, said a priority for APR is getting FTC to drop a provision in the Green Guides that allows post-industrial recycled plastic to be labeled as recycled content in consumer packaging.

"We don't agree that post-industrial material should be counted as recycled content for consumer packaging," he said, because consumers see recycled content as coming from packaging they've used and recycled in curbside bins and local programs.

Another panelist, Heidi Sanborn, executive director of the Sacramento, Calif.-based National Stewardship Action Council, told the conference that pressure is growing on companies because of lawsuits like the one against Keurig and because of the SB-343 legislation.

"I hope that we can take the California [law] and put it in other states," Sanborn said. "We got it introduced in Maryland — a truth in labeling bill — but I would really like to see it harmonized at the national level."

In an interview after her panel, Sanborn said FTC should look to existing initiatives like the U.S. Plastics Pact's problematic materials list and the work of the California Statewide Commission on Recycling Markets and Curbside Recycling for ideas on how to revise the Green Guides.

Sanborn also chairs the California statewide commission. In December, that body wrote to California Attorney General Rob Bonta with 80 examples of what it said were misleading recyclability claims on plastic packaging and asked state officials to investigate.

She said she believes the FTC under President Joe Biden is going to be more active on green marketing.

"I think they're going to follow the [California] commission. I think they're going to follow the Plastic Pact's elimination list," Sanborn said. "I think it's going to be a lot tighter than it's been in the past."

FTC has not yet opened a formal rule-making on the Green Guides but has said publicly it is on the agenda.

Both Sanborn and Alexander said that many groups are meeting behind the scenes with the agency to get a foot in the door on the rewrite.

Sanborn said she is considering asking the California commission to write a letter to the agency. Alexander said APR has also met with FTC staff.

"They're hearing from everybody and their mother about what those Green Guides could say," Alexander told the panel at the recycling conference, which was held March 7-9 outside Washington, D.C. The event was partly sponsored by APR.

In an interview on the sidelines of the event, Alexander said APR sent a letter to Sen. Jeff Merkley, D-Ore., earlier in March asking Merkley and other lawmakers to write to FTC and emphasize how stronger Green Guides could help plastics recycling.

"We're asking them to help elevate the issue within FTC," Alexander said. Merkley is the lead Senate sponsor of the Break Free From Plastic Pollution Act.

Alexander said APR has argued to FTC that only reclaimed plastic that comes from a post-consumer recycling stream should be counted as recycled content, instead of being able to count post-industrial factory scrap material.

But he said it's not clear if FTC agrees with APR's position.

"We've said to them, in our opinion, it should just be materials that consumers touch and put in the marketplace," he said. "I'm not sure they're agreeing with us right now, so that's my concern."

Sanborn said there are also early-stage conversations around national legislation for recyclability labeling, and she said she believes consumer product companies are starting to support such a national approach because it would be easier for them than having 50 separate state laws.

She said California SB-343, which requires packaging to be effectively recyclable in 60 percent of the state to carry recyclability labeling, has helped jump-start a national debate, along with successful lawsuits.

Sanborn said surveys from groups like the Consumer Brands Association find that consumers are frustrated and confused about what is recyclable and they want clearer guidelines.

"We've got to work together to get a labeling system that works for the public," Sanborn said. "We certainly shouldn't be putting chasing arrows on things that have recycling rates of 5 percent or 10 percent."