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21 January 20256 minute read

California’s recycling claims restrictions approach, but some compliance obligations are already in effect

The California Department of Resources Recycling and Recovery (CalRecycle) has issued its Revised Preliminary Findings Report on the recyclability of various materials under the state’s “Truth in Recycling” law, also known as SB 343.

The report, released on December 31, 2024, sheds further light on the state’s upcoming restrictions on the use of environmental marketing claims, which include claims or symbols suggesting that products or packaging are recyclable, such as the ubiquitous “chasing arrows” symbol.

Those restrictions are expected to take effect in 2026, 18 months after CalRecycle publishes the final iteration of its first Material Characterization Study Report providing information by which manufacturers can determine whether their products are deemed recyclable.

The final report is expected within 60 days after CalRecycle collects further comments at a public meeting on February 3, 2025. In the meantime, however, SB 343 already imposes recordkeeping obligations on anyone making environmental marketing claims about their products. Below we discuss what consumer goods companies doing business in California should know.

Overview of SB 343

The primary focus of SB 343 is to regulate the use of environmental marketing claims the state deems to be false or misleading. Such claims include any claim identified in the Federal Trade Commission (FTC)’s Guides for the Use of Environmental Marketing Claims, commonly referred to as the “Green Guides,” or claims that a product or packaging is recyclable or should be recycled.

Once SB 343 is fully operative, no product or packaging labeled as recyclable can be distributed in or imported to California unless it is (1) collected by recycling programs in jurisdictions encompassing at least 60 percent of the state’s population and (2) sorted into defined streams for recycling processes by at least 60 percent of the state’s recycling programs.

The official rates that will determine the recyclability of a product will be available in early 2025 when CalRecycle publishes its final material characterization report.

Additionally, to be deemed recyclable, products and packaging must:

  • Have no components, inks, additives, or labels that prevent them from being recycled

  • Be designed to ensure “recyclability”

  • Not contain certain chemicals identified by California regulations, and

  • Not be made from plastic or fiber containing per- and polyfluoroalkyl substances (PFAS) meeting certain criteria.

Even if a product or packaging does not meet these requirements, it can still be considered recyclable if it meets any of the following categories and criteria:

  • High recycling rate: If at least 75 percent of the product or packaging sorted or aggregated in California is actually recycledie, reprocessed into new products or packaging – it will be considered recyclable.

  • Non-curbside collection: Before January 1, 2030, a product or packaging not collected through curbside collection is recyclable if the collection program recovers at least 60 percent of it and can market it for recycling and send it to a transfer, processing, or recycling facility. After January 2030, the recovery rate must be at least 75 percent.

  • Compliance with program: Products or packaging that comply with a relevant state or federal program established on or after January 1, 2022 will also be considered recyclable if it will not increase contamination of curbside recycling or deceive consumers.

Updates in the Revised Preliminary Findings Report

CalRecycle’s new report follows a preliminary report issued a year earlier and incorporates the agency’s consideration of the public comments submitted on the earlier report. Like the prior iteration, the Revised Preliminary Findings Report provides reams of data regarding the types and forms of materials that Californians are throwing away and recycling.

Although not yet final, the report suggests that many material types and forms will have difficulty meeting the law’s stringent definition of recyclable. These include most plastic films, polystyrene, and PVC packaging, as well as treated wood, textiles, and most disposable food service ware.

The underlying data are not expected to change so significantly in CalRecycle’s final report that it would change the likely outcomes for these materials, meaning producers will be barred from using recycling claims on them until at least the next material characterization study, which is due in 2027.

Recordkeeping and public access requirements for manufacturers

The anticipated restrictions on recycling claims under SB 343 have made headlines, but these are still more than a year away from taking effect. Less attention has been paid to the law’s recordkeeping mandates, which are already in effect. Under the law, anyone who makes a claim that a product does not harm, or is beneficial to, the environment, or who directs consumers to recycle the product, including through the use of the chasing arrows symbol, must maintain written records “supporting the validity of the representation.” Covered claims include such terms as “environmentally friendly,” “ecologically sound,” “environmentally safe,” “environmentally lite,” “green,” or any other like term. Records to be maintained include:

  • Justification of claims: Reasons the person believes the representation to be true.

  • Environmental impact: Significant adverse environmental impacts directly associated with the production, distribution, use, and disposal of the consumer good.

  • Mitigation measures: Actions taken to reduce the environmental impacts directly associated with the production, distribution, and disposal of the consumer good.

  • Permit violations: Violations of any federal, state, or local permits directly associated with the production or distribution of the consumer good.

  • Conformance with FTC guidelines: Compliance (if applicable) with the uniform standards contained in the FTC Guidelines for Environmental Marketing Claims for the use of the terms “recycled,” “recyclable,” “biodegradable,” “photodegradable,” or “ozone friendly.”

  • Recyclability criteria: Confirmation that the product meets the recyclability criteria described above.

Critically, companies must make these records available to any member of the public that requests them. This could create liability risks given the recent rise in consumer suits against consumer goods companies for allegedly misleading environmental marketing claims. SB 343 essentially directs companies to prepackage data that plaintiffs would traditionally have to obtain through litigation and discovery. These records may also provide an attractive target for prosecutors and government agencies looking to scrutinize companies’ marketing claims.

Next steps

Although the final study has not been published, the preliminary findings may be used to guide compliance efforts with SB 343. Businesses are encouraged to consider taking stock of products and packaging that bear any environmental marketing claims, including claims related to recyclability, and determine whether they meet the law’s stricter definitions. Taking proactive steps now may help businesses minimize the potential for penalties, legal challenges, and reputational damage.

For more background on SB 343, you can read our prior alert here. To understand how SB 343 might affect your business, please contact the authors.

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