Just before the end of 2023, the California Department of Resources Recycling and Recovery (CalRecycle) released preliminary study findings related to the state’s 2021 landmark labeling law, Senate Bill 343 (SB 343). The law prohibits the use of the chasing arrows symbol, the chasing arrows symbol surrounding a resin identification code (RIC), or any other indicator of recyclability on packaging unless state-specific criteria are met. The stated purpose of the law is to provide clarity to consumers and promote the use of materials that are truly recyclable within the state's recycling infrastructure.

Under SB 343, a product or packaging is considered recyclable at curbside in California if the material type and form meets two conditions. First, it must be collected for recycling by local recycling programs that collectively serve at least 60% of the state’s population. Second, it must be sorted into defined streams for recycling by large volume transfer or processing facilities (LVTPs) that collectively serve at least 60% of the state's recycling programs. These sorted streams also must be sent to and reclaimed at a facility that complies with the Basel Convention requirements. Non-curbside/drop-off materials must meet a different set of criteria, having a recycling rate of 60%; 75% after 2030.

CalRecycle gathered data from local jurisdictions on the materials accepted by their recycling programs, conducted surveys on the recovery activities at LVTPs in California, and performed material characterization sampling of recyclables at LVTPs across the state. The findings, scheduled to be finalized sometime in 2024, may help packaging manufacturers and brand owners determine which packaging can legally display the chasing arrows with RICs or other recyclability indicators. Further, SB 343 recyclability also will factor into whether materials are deemed recyclable under the state’s new extended producer responsibility law for packaging (SB 54).

Concerns with California approach

Although SB 343 is a state-specific law, AMERIPEN is concerned that it has the potential to disrupt national labeling efforts, confuse rather than assist consumers, and could cause more packaging to go to landfills instead of recycling facilities. 

Effectively, the law creates a labeling standard in California for packaging that is different than nationally recognized labeling standards—the Federal Trade Commission (FTC) Green Guides, which many states have used to guide their own lawmaking. SB 343 also conflicts with regulations in 36 other states, where omitting the RIC with chasing arrows could lead to state or private enforcement actions. Consequently, marketers are placed in a difficult position, having to develop and implement California-specific labeling and marketing protocols or cease doing business in the state altogether. 

Clearly, a state-level approach is impractical for interstate commerce, and we believe it likely will heighten consumer confusion and mistrust while hindering efforts to improve packaging recovery and recycling management. It’s also possible that the results of CalRecycle’s final study may influence how other states implement or amend their own regulations, potentially leading to an additional patchwork of competing requirements. 

California is currently seeking stakeholder feedback on the preliminary findings of their material characterization study. Comments on the draft study are due April 2, after which CalRecycle will reassess the methodology and possibly make changes. AMERIPEN has requested input from members and will be submitting comments and suggestions to help CalRecycle define what materials will be deemed recyclable. 

A call for universal standards

The contradictory labeling laws in California versus other states underscore the need for a more consistent and unified approach to packaging labeling regulations across the United States. Currently the FTC Green Guides lack the legal jurisdiction to pre-empt state definitions and laws, and, as a result, California and other states may continue to adapt and supersede its tenets, creating a patchwork of incompatible regulations. 

Federal definitions enacted by Congress, however, could harmonize regulations across all states and federal agencies, including the FTC and the U.S. Environmental Protection Agency. A federal law that clearly defines recyclable, compostable, and reusable to reflect current market demands would help avoid a patchwork for state-specific requirements. It would also help industry and local communities better manage the packaging lifecycle by providing easily accessible information to consumers and facilitating the flow of discarded packaging materials to appropriate recycling, composting, and reuse facilities. Standardized definitions would also go a long way to decrease confusion and instill more consumer confidence in recycling, composting, and reuse systems.

As packaging industry professionals, we all know that recovery for recycling and reuse is essential, and our federal government can play a transformative role in improving packaging recycling, composting, and reuse rates by providing clear definitions and endorsing national standards. AMERIPEN is actively engaged in discussions with its members and policymakers to achieve this. To learn more about how you can engage in the process, contact AMERIPEN or your packaging trade association as well as your elected officials.