December 1, 2021

Volume XI, Number 335

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California Prohibits Use of Chasing Arrows on Non-Recyclable Items

On October 5, 2021, California’s Governor Newsom signed Senate Bill 343 (SB 343) prohibiting the use of the chasing arrows symbol on non-recyclable products and packaging. Under the new law, a product or packaging that displays the chasing arrows symbol or any other symbol or statement indicating it is recyclable is deceptive or misleading unless the product is “recyclable” in accordance with California-specific regulations and is of a material type and form that routinely becomes feedstock used in the production of new products or packaging. The law requires the California Department of Resources Recycling and Recovery (CalRecycle) to take steps to evaluate and identify which materials are “recyclable” in the state.

The adoption of SB 343 is evidence of growing focus from legislators, regulators, and the public on environmental claims and plastic recyclability, though the bill is not limited to plastic products and packaging. This focus has arisen as the plastics recycling industry is facing new opportunities and challenges amidst global shifts in how plastics are produced, moved across boundaries, and recycled. In addition to SB 343, the Governor signed a number of other bills reflecting an overall focus on reducing plastic pollution, summarized further below.

Limits on use of the chasing arrows symbol

SB 343 prohibits offering for sale, selling, distributing, or importing a product or packaging for which a deceptive or misleading claim about the recyclability of the product or packaging is made. Displaying the chasing arrows symbol or otherwise indicating the product or packaging is recyclable is deemed a deceptive or misleading claim, unless the product or packaging is “recyclable” and is of a material type and form that routinely becomes feedstock used in the production of new products or packaging. Those criteria are discussed further below.

The use of the chasing arrows symbols or otherwise directing a consumer to recycle a consumer good now requires that a person using the symbol on a good that it manufactures or distributes to maintain certain records supporting the claim. This law expands on existing law in California that requires such records for of claims that a consumer good is not harmful to, or is beneficial to, the natural environment. 

The law specifies how the chasing arrows symbol should be used and interpreted if, for example, the external packaging is recyclable but the contents are consumable or not recyclable. 

Evaluating recyclability in California

On or before January 1, 2024, CalRecycle must collect additional information on materials collected for recycling and to conduct a characterization study of material types and forms collected, sorted, sold, or transferred by solid waste facilities. Based on that information, a product or packaging will be deemed “recyclable” if it is of a material type and form that meets both of the following requirements:

  1. The material type and form is collected for recycling by recycling programs for jurisdictions that collectively encompass at least 60 percent of the population of the state; and

  2. The material type and form is sorted into defined streams for recycling processes by large volume transfer or processing facilities (or other facilities as determined by CalRecycle) that process materials and collectively serve at least 60 percent of recycling programs statewide, with the defined streams sent to and reclaimed at a reclaiming facility consistent with the requirements of the Basel Convention.

Furthermore, a product or packaging is not recyclable in California if:

  1. It includes components, inks, dyes, adhesives, or labels that prevent its recyclability;

  2. It contains intentionally added chemicals identified pursuant to regulations implementing section 42370.2(g)(4) of the California Public Resources Code; or

  3. It is made from plastic or fiber containing PFAS that have been intentionally added with a functional or technical effect or that measure above 100 parts per million total organic fluorine.

Notwithstanding the requirements laid out above, a product or packaging is recyclable if:

  1. The product or packaging has a demonstrated recycling rate in California of at least 75 percent;

  2. The product or packaging is not collected pursuant to a curbside program but the non-curbside collection program recovers a certain portion of the product or packaging and it has sufficient commercial value; or

  3. The product or packaging is part of, and in compliance with, a program established on or after January 1, 2022, governing the recyclability of that product or packaging and the director of CalRecycle determines that it will not increase contamination of curbside recycling or deceive consumers.

Affected entities could look to the above three methods for determining recyclability to support claims that the product or packaging is recyclable.

Use of resin identification codes

The chasing arrows symbol is commonly used with resin identification codes on plastic products and packaging. The resin identification code includes a digit (1 through 7) representing the resin in the product or packaging. The purpose of the resin identification code is to allow for proper sorting of items by resin type, which in turn allows for effective recycling of products deemed to be recyclable. 

When the resin identification code was initially developed by the Society of the Plastics Industry Inc. (SPI), the symbol included the chasing arrows triangle. In 2013, the resin identification code symbol, now defined under an ASTM standard, was updated to include the resin number inside an equilateral triangle with an abbreviation for the resin shown below the triangle. The triangle no longer includes arrows.

Several states, including California, already have legislation requiring the use of the resin identification code, particularly on rigid plastic containers. SB 343 in California does not affect the requirement that rigid plastic bottles and containers sold in the state must continue to bear the resin identification code, but that code now cannot be placed inside a chasing arrows symbol unless the bottle or container meets statewide recyclability criteria.

Other states, like Delaware, continue to have requirements that certain products include the resin code inside chasing arrows or refer to the original SPI codes, although it is not immediately clear how those requirements may have been affected by the revisions to the SPI and ASTM standards. See, e.g.Del. Code tit. 7, § 6092La. Stat. § 30:2422D.C. Mun. Regs. tit. 21 §1002. Companies operating in California and other states may now face a conundrum, potentially resulting in the need for different labeling in different states.

Under the Federal Trade Commission Green Guides, the chasing arrows symbol may constitute a recyclability claim depending on how it is used, so even in states that may require the chasing arrows symbol, companies should only use it in an inconspicuous manner, unless the product or packaging is recyclable. The new California law goes further to deem any use of the chasing arrows symbol a recyclability claim in the state. The FTC intends to begin an update of its Green Guides in 2022, and the developments under SB 343, and the risk of conflicting mandates from other states, will undoubtedly result in significant revision to the Green Guides’ existing provisions with respect to plastic recyclability claims and markings.

Related bills in California

Other bills signed along with SB 343 reflect the state’s efforts to combat plastic pollution and to advance environmental goals. They include, among others: a law classifying exporting plastic waste as disposal rather than diversion through recycling (Assembly Bill 881); a law limiting the use of compostability claims (Assembly Bill 1201); a law further restricting the provision of certain single-use plastic products (Assembly Bill 1276); two laws updating the requirements for beverage container recycling (Assembly Bill 962 and Assembly Bill 1311); and, two laws addressing the presence of per- and poly-fluoroalkyl substances (PFAS) in products and packaging (Assembly Bill 652 and Assembly Bill 1200). Senate Bill 54, which would have required that all single-use packaging and food service ware be recyclable by 2032, did not pass this year but could be revived again in coming years.

Related developments in other states

While SB 343 is reportedly the first law of its kind, similar proposals have been introduced by legislators in several other states. In Oregon, Senate Bill 581 included a similar proposal to limit the use of the chasing arrows symbol to recyclable products. That bill was revised to instead propose a “Truth in Labeling Task Force,” which was then established with the adoption of Senate Bill 582. While the new Oregon law does not outlaw the use of the chasing arrows symbol, it does repeal the requirement that rigid plastic bottles and containers include the chasing arrows symbol.

In New York, Senate Bill S7375 and Assembly Bill A7668 are pending bills that would prohibit the sale of products or packaging for which a deceptive or misleading claim about the recyclability of the product or packaging is made. They would have the New York Department of Environmental Conservation develop regulations to determine the types and forms of plastic products and packaging for which a recyclability claim (including the use of the chasing arrows symbol) can be made. 

© 2021 Beveridge & Diamond PC National Law Review, Volume XI, Number 279
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About this Author

K. Russell LaMotte Environmental Attorney Beveridge & Diamond Washington, DC
Principal

Russ helps global companies navigate international environmental regulatory regimes and develop product compliance and market-access strategies.

He served for over ten years as an international lawyer at the United States Department of State, representing the U.S. Government in designing, negotiating, or implementing most of the major multilateral environmental and oceans agreements. His experience and representative matters include: 

Chemicals, Substances in Articles, and Product-Related Environmental Compliance

  • Advising chemicals, pesticides,...
202-789-6080
Dacia T. Meng Producer Responsibility Initiatives Attorney Beveridge & Diamond Washington, DC
Associate

Dacie Meng advises clients on domestic and international circular economy and extended producer responsibility initiatives.

She specializes in end-of-life management of plastics, packaging, electronics, pharmaceuticals, and other products in the U.S. and globally.

Dacie regularly advises on requirements governing transboundary shipments of products for reuse, repair, and recycling. She also supports the development of product stewardship programs across the country in compliance with extended producer responsibility legislation.

In addition, Dacie counsels clients...

202-789-6017
Sarah N. Munger Environmental Attorney Beveridge & Diamond Austin, TX
Associate

Sarah’s versatile practice spans numerous environmental media. She assists clients in regulatory compliance, enforcement actions, and civil litigation under major federal and state environmental statutes, including the Clean Air Act and Clean Water Act. In particular, Sarah has worked with clients to respond to developing legal issues related to:

  • Climate change and natural disasters;
  • Plastic waste;
  • PFAS; and
  • Environmental torts

Prior to joining Beveridge & Diamond, Sarah worked at the Lower Colorado River Authority,...

512-391-8014
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