On October 5, 2021, California Governor Newsom signed Senate Bill 343 (SB 343) banning 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 that it is recyclable is misleading or deceptive unless the product is “recyclable” in accordance with California regulations. and that it is of a type of material and shape which commonly becomes a raw material 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 assess and identify which materials are “recyclable” in the state.

The passage of SB 343 is proof of the growing attention of lawmakers, regulators and the public on environmental claims and the recyclability of plastic, although the bill is not limited to plastic products and packaging. This goal has emerged as the plastics recycling industry faces new opportunities and challenges amid global changes in the way plastics are produced, moved across borders and recycled. In addition to SB 343, the governor signed a number of other bills reflecting a global focus on reducing plastic pollution, summarized below.

Limits on the use of the chase arrows symbol

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

The use of symbols depicting chasing arrows or ordering a consumer to recycle a consumer good now requires that a person using the symbol on a good that he manufactures or distributes to keep certain supporting records of the claim. This law extends existing California law that requires such registrations for claims that a consumer good is not harmful or beneficial to the natural environment.

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

Assess recyclability in California

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

1. The type and shape of the material is collected for recycling through recycling programs for jurisdictions that collectively encompass at least 60 percent of the state’s population; and
2. The type and shape of materials are sorted into defined streams for recycling processes by large volume transfer or processing facilities (or other facilities as determined by CalRecycle) that process the materials and collectively serve at least 60 percent of recycling programs statewide, with defined streams sent to and recovered at a recovery facility that meets Basel Convention requirements.

In addition, 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 in accordance with regulations implementing Section 42370.2 (g) (4) of the California Public Resources Code; Where
3. It is made from plastics or fibers containing PFAS which have been intentionally added with a functional or technical effect or which measure more than 100 parts per million of total organic fluorine.

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

1. The product or packaging has a California proven recycling rate of at least 75%;
2. The product or packaging is not collected under a selective collection program, but the non-selective collection program makes it possible to recover a certain part of the product or the packaging and it has sufficient commercial value; Where
3. The product or packaging is part of and complies 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 curbside recycling contamination. or will not deceive consumers.

Affected entities could look to the above three methods to determine 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 number (1 to 7) representing the resin in the product or package. The purpose of the resin identification code is to allow proper sorting of items by resin type, which in turn allows for efficient recycling of products deemed recyclable.

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

Several states, including California, already have legislation requiring the use of the resin identification code, especially 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 carry the resin identification code, but this code cannot now be placed in the inside a chasing arrows symbol unless the bottle or container meets state recyclability criteria.

Other states, such as Delaware, continue to require certain products to include the resin code inside chasing arrows or refer to the original SPI codes, although it is not immediately clear how. these requirements may have been affected by revisions to the SPI and ASTM standards. . See, for example, Of the. Code tit. 7, § 6092; The. Stat. § 30: 2422; DC Mun. Reg. tit. 21 §1002. Companies operating in California and other states may now be faced with a conundrum, which could lead to the need for different labeling in different states.

Under the Federal Trade Commission green guides, the chasing arrows symbol may constitute a claim of recyclability depending on how it is used, so even in states that may require the chasing arrows symbol, companies should not use it only discreetly, unless the product or packaging is recyclable. California’s new law goes further by treating any use of the chasing arrows symbol as a recyclability claim in the state. The FTC intends to begin an update to its Green Guides in 2022, and developments under SB 343, and the risk of conflicting mandates from other states, will undoubtedly result in a major overhaul of existing provisions of the FTC. green guides regarding plastic recyclability claims. and markings.

California related invoices

Other bills signed with SB 343 reflect the state’s efforts to tackle plastic pollution and advance environmental goals. These include: a law classifying the export of plastic waste for disposal rather than diversion through recycling (Assembly Bill 881); a law limiting the use of compostability claims (Assembly Law 1201); a law further restricting the supply of certain single-use plastic products (Assembly Bill 1276); two laws updating beverage container recycling requirements (Assembly Bill 962 and Assembly Bill 1311); and, two laws dealing with the presence of per- and poly-fluoroalkylated substances (PFAS) in products and packaging (Assembly Bill 652 and Assembly Bill 1200). Senate Bill 54, which would have required all single-use packaging and catering items to be recyclable by 2032, was not passed this year but could be revived in years to come.

Related developments in other states

While SB 343 would be the first law of its kind, similar proposals have been introduced by lawmakers 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. This bill was revised to instead propose a “Truth in Labeling Working Group”, which was subsequently established with the passage of Senate Bill 582. Although the new law of the Oregon does not ban the use of the chasing arrows symbol, it repeals the requirement that rigid plastic bottles and containers include the chasing arrows symbol.

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