California hopes to pass a new law to end this confusion, which will strictly regulate which products or materials can display recycling signs. 

Although paper and metal are often recycled, the same cannot be said for plastics. Most of the plastic used throughout the country is not recycled, but is incinerated or sent to landfills. Non-recyclable items such as snack bags, plastic films, food bags and other packaging materials are often thrown into the recycling bin, which will only block or cause other damage to the municipal sorting equipment. 

Another common problem arises when "recyclable" products or materials contain components, inks, adhesives, or labels that prevent other recyclables from being recycled. In addition, some items that are truthfully marked or advertised as recyclable must be recycled through special programs, such as store recycling programs, rather than municipal recycling programs. 

According to the new California law, almost all products or materials that display recycling marks or are sold as recyclables need to meet detailed recyclability standards. Most notably, only products or packaging that meet the following requirements can be considered recyclable in the state:

In order to determine which materials meet these standards, the state will conduct a survey of waste treatment facilities every five years and publish material characterization studies. 

Only if the non-curbside collection program collects at least 60% of the items before 2030 and at least 75% of the items are recovered thereafter, any items that cannot be recycled by curbside picking will be considered recyclable in the state. 

California standards are stricter than those set by the Federal Trade Commission (FTC) in its Green Guidelines. Similar to California's new standard, when at least 60% of consumers or communities where items are sold can use recycling facilities, the FTC allows advertisers to make unqualified "recyclable" claims. However, unlike California, the FTC also allows advertisers to make qualified recyclable claims when fewer than 60% of consumers or communities have recyclable facilities available, as long as the advertiser clearly discloses the restricted facilities for recyclable use. For example, the FTC allows advertisers to mark products or materials as recyclable, even if "recycling facilities are only available to a small number of consumers", as long as they pass a statement such as "This product [packaging] is recyclable" A small number of communities with proper recycling facilities. "It is worth noting that the FTC will review the green guidelines in 2022, which may result in changes to its current guidelines on recyclable claims and other environmental advertising claims. 

Therefore, California law appears to significantly restrict the use of products or materials that cannot be recycled through the roadside municipal recycling program in at least 60% of the state. Advertisers who want to promote items that cannot be collected on the roadside as recyclable items need to develop a very effective non-roadside recycling program. 

Although the scope is limited to California, the law may have a significant impact on recycling claims in the United States, especially as consumers and brands increasingly seek products with a smaller environmental footprint. However, many consumer products made from recyclable materials cannot be recycled through curbside collection programs. Before the law goes into effect on January 1, 2024, brands seeking to make recyclable claims (including chasing arrows) need to carefully review their products/packages and available recycling programs.

Disclaimer: Due to the generality of this update, the information provided here may not be applicable to all situations, and action should not be taken without specific legal advice based on specific circumstances.

© Arendt Fox | Lawyer Advertising

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