By Christopher “Smitty” Smith , Partner & Chair of the Environmental Group
CalRecycle recently published its final findings on material characterization for Senate Bill 343 (SB343), codified as Cal. Pub. Res. Code section 42355.51. CalReycle’s final findings are California’s final determination on which products and packaging materials California recognizes as eligible to use the “chasing arrows” symbol or any other indicator of recyclability under SB343. For the materials that CalRecycle found to be eligible to use the symbol, the findings likely create a presumption that use of the symbol on products and packaging is done so in compliance with SB343. Conversely, for the materials that CalRecycle found not to be eligible, the opposite presumption appears to apply.
In short, businesses with products or packaging that utilize the chasing arrows symbol should be mindful of CalReycle’s final findings to avoid any potential penalties or litigation brought under SB343 and related California statutes, e.g., Cal Bus. & Prof. Code sections 17200 (Unfair Business Practices) and 17500 (False or Misleading Advertising), Cal Civ. Code section 1750 (Consumer Legal Remedies Act).
SB343 Overview –
The “chasing arrows” symbol is recognized as a universal symbol of recyclability. In recent years, the symbol has come under controversy because of the symbol’s use on products and packaging that were not being recycled in California. That controversy in turn led the California legislature to pass Senate Bill 343, which restricts the use of the symbol and other recyclability claims to specific circumstances.
Under SB343, which is codified at Cal. Pub. Res. Code section 42355.51(d)(2), businesses seeking to utilize the symbol or make recyclability claims on products and packaging must be able to demonstrate that their products and packaging:
Are accepted for collection by California jurisdiction recycling programs;
Are sorted into defined streams by large volume transfer/processing facilities;
Are sent to a reclaimer and reclaimed consistent with the Basel Convention; and
Meet specific composition and design requirements.
Although SB343 was signed into law in late 2021, the legislature did not provide businesses with the information necessary to determine whether they could utilize the symbol under SB343. Instead, the legislature left it up to CalRecycle to provide that information through initial and then final findings on material product and packaging characterization.
In early 2024, CalRecycle published its initial findings on product and packaging materials characterization. Businesses were then presented with the opportunity to comment on those initial findings; comments which are incorporated into the final findings as an appendix. In early 2024, CalRecycle published its final findings, which only provide businesses with findings on the first two elements of Cal. Pub. Res. Code section 42355.51(d)(2), leaving the other two elements for businesses to determine compliance.
With final findings published, businesses now have eighteen (18) months to ensure that their use of the chasing arrows symbol and other recyclability claims on their products and packaging comply with SB343.
SB343 Compliance Risks –
Consumer litigation and penalties are the most significant compliance risks for businesses dealing with SB343.
Consumer and class action litigation are the most likely form of litigation risk that businesses will face for alleged violations of SB343. In fact, such litigation is already underway in California. Typically, California consumer protection statutes like the Consumer Legal Remedies Act, Unfair Business Practices, and False or Misleading Practices are relied upon to support litigation over claims of recyclability. Now, with SB343, it is anticipated that plaintiffs will seek to rely on SB343 as yet another form of alleged liability that businesses must defend against. Plaintiffs generally refer to these types of consumer litigation over claims of recyclability as “greenwashing” litigation. Presently, there are scores of consumer class actions filed in California over recyclability claims and SB343 is not anticipated to slow that trajectory.
Penalties are a less costly form of risk that businesses will face under SB343. While less costly, the penalties prescribed by SB343 are no less significant. For example, penalties are provided for the use of symbols or statements that do not comport with SB343 to the tune of up to $2500 per violation. As well, such symbols or statements can result in a misdemeanor punishable by up to six (6) months in prison. Similarly, penalties and potential jail time are available for SB343 recordkeeping violations. Finally, there are penalties available for placing a product’s resin code within the chasing arrows symbol.
In sum, the compliance risk for SB343 are substantial and should be reckoned with before those risks turn into liabilities.
Protecting Your Business from SB343 Risks –
Businesses need to be proactive to confirm compliance with SB343. This is because SB343 places the burden on businesses to demonstrate compliance. As a result, being able to demonstrate compliance is critical for businesses to prophylactically defend against the litigation and penalties risk.
It is critical that before the litigation and penalties are threatened that businesses with products and packaging that contain the chasing arrows symbol determine whether those products and packaging comply with SB343.
For more information, please contact Christopher “Smitty” Smith, Partner and Chair of the Environmental Group, at christopher.smith@gmlaw.com
