Judge pauses California 'Truth in Recycling' law before it goes into effect

(CN) — A federal judge halted enforcement of a California law, sometimes dubbed the Truth in Recycling law, that sets new criteria for labeling packaging as recyclable and was to go into effect in October.

Senior U.S. District Judge William Hayes in San Diego issued a preliminary injunction at the request of a coalition of trade organizations representing food producers, grocers, retailers and restaurant owners who argue the statute, SB 343, is unconstitutionally vague and violates their commercial speech rights under the First Amendment.

The George W. Bush appointee agreed four of the law’s provisions are too vague to be enforceable. But even if these provisions were severed from the rest of the statute, Hayes concluded, the law would still be an unconstitutional restriction of commercial speech because California hasn’t shown how it will promote the state’s purported goals of improving recycling rates and reducing consumer confusion.

For one thing, the judge noted in Tuesday’s ruling, the heightened requirements for putting the “chasing arrows” recyclability symbol on packaging will prompt food producers and others to leave the symbol off recyclable plastic products, rather than risking a misdemeanor violation, making it more likely that these products end up in a landfill.

While such arguments by food producers are self-serving, Hayes said, California has failed to produce evidence to refute them.

“More importantly, defendant offers no evidence to support the speculative position that SB 343 will cause manufacturers to redesign their products and packaging in a way that complies with SB 343, as opposed to manufacturers simply omitting truthful statements regarding recyclability from their products and packaging,” the judge wrote.

The statute Governor Gavin Newsom signed into law in 2021 requires products to meet several benchmarks to be advertised or labeled as recyclable in order to help consumers clearly identify which products are recyclable in California.

The requirements include that at least 60% of California residents must have access to recycling the product; the product is sorted into streams in facilities represented by 60% of the recycling programs in the state; the product is not rendered non-recyclable by the Association of Plastic Recyclers; and does not include heavy metals or PFAS at 100 parts per million.

Part of the problem the law seeks to address is that consumers throw plastic bags, pouches and the like, which have a recyclability symbol, in the blue curbside recycling bins, but which can’t be processed by plastic recycling plants and can end up clogging the machinery.

However, Hayes wasn’t persuaded that enforcement of SB 343 will do much to improve consumers’ understanding of which plastic products are indeed recyclable.

“If consumers are confident that a recyclability claim is substantiated with competent evidence and satisfies statewide criteria, then those consumers will be able to make more informed purchasing decisions,” the judge said. “The current record indicates, conversely, that SB 343’s requirements will result in manufacturers choosing to forgo recyclability claims that would provide consumers with environmental information for fear of enforcement actions.”

Californians for Affordable Packaging, an organization of packaging producers, manufacturers, distributors andrelated industry stakeholders opposed to SB 343, said Hayes’ ruling will help to avoid unnecessary disruption while their constitutional challenge moves forward.

“Californians for Affordable Packaging and the petitioner group will continue to press the case that California can strengthen recycling without censoring truthful information on packaging and without adding unnecessary and significant costs for California families and businesses,” the organization said.

The California Attorney General’s Office said it’s reviewing the ruling to determine its next steps in the ongoing litigation.

“SB 343 protects Californians from false environmental claims related to recyclability,” the office said.

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