California’s Department of Resources Recycling and Recovery (CalRecycle) recently released a preliminary report analyzing data related to the recyclability of certain materials in California.  The report, issued in accordance with CalRecycle’s obligations under California Senate Bill 343 (SB 343), is intended to help the public determine whether businesses may legally claim their products and packaging are recyclable in California, including through the inclusion of the common “chasing arrows” symbol.

Enacted in 2021, SB 343 provides that products or packaging may not include messaging “indicating that the product or packaging is recyclable, or otherwise directing the consumer to recycle the product or packaging” unless it satisfies the statutory definition of “recyclable.”  Cal. Pub. Res. Code § 42355.51(b)(1).  To be considered recyclable, items must be collected by recycling programs that serve at least 60% of the state’s population and sorted by large volume transfer or processing facilities (LVTPs) that serve at least 60% of statewide recycling programs.  Companies that make noncompliant recyclable claims may face liability under the state’s consumer protection statutes. It is also important to note that compliance with the Federal Trade Commission’s Green Guides may be insufficient to assure compliance with these new California requirements.

The preliminary report analyzes whether certain categories of materials—including subcategories of metal, plastic, fiber, and glass—are collected by local recycling programs and whether they are sorted by a sample of the state’s LVTPs.  The report also estimates the percentages of the state’s population served by the analyzed programs and facilities.  The results are broken down by type of material to aid the public in determining whether specific items may be advertised as “recyclable” in California.  Covington’s more detailed analysis of the report’s findings and implications is available via email here.

CalRecycle will present its preliminary findings and solicit feedback on February 13, 2024 during a public workshop.  The workshop is live in Sacramento and may also be attended via webcast.  Additionally, interested parties may submit written comments until February 29, 2024.  CalRecycle plans to finalize its findings within 60 days of the public workshop.

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Photo of Laura Kim Laura Kim

Laura Kim draws upon her experience in senior positions at the Federal Trade Commission to advise clients across industries on complex advertising, privacy, and data security matters. She provides practical compliance advice and represents clients in FTC and State AG investigations. Ms. Kim…

Laura Kim draws upon her experience in senior positions at the Federal Trade Commission to advise clients across industries on complex advertising, privacy, and data security matters. She provides practical compliance advice and represents clients in FTC and State AG investigations. Ms. Kim advises on a wide range of consumer protection issues, including green claims, influencers, native advertising, claim substantiation, Made in USA claims, children’s privacy, subscription auto-renewal marketing, and other digital advertising matters. In addition, Ms. Kim actively practices before the NAD, including recent successful resolution of matters for both challengers and advertisers. She co-chairs Covington’s Advertising and Consumer Protection Practice Group and participates in the firm’s Internet of Things Initiative.

Ms. Kim re-joined Covington after a twelve-year tenure at the FTC, where she served as Assistant Director in two divisions of the Bureau of Consumer Protection, as well as Chief of Staff in the Bureau of Consumer Protection and Attorney Advisor to former Chairman William E. Kovacic. She worked on key FTC Rules and Guides such as the Green Guides, Jewelry Guides, and the Telemarketing Sales Rule. She supervised these and other rule making proceedings and oversaw dozens of the Commission’s investigations and enforcement actions involving compliance with these rules. Ms. Kim also supervised compliance monitoring for companies under federal court or Commission order.

Ms. Kim also served as Deputy Chief Enforcement Officer at the U.S. Department of Education, where she helped establish a new Enforcement Office within Federal Student Aid. In this role, she managed investigations of higher education institutions and oversaw issuance of fines and adverse actions for institutions in violation of federal student aid regulations. Ms. Kim also supervised the borrower defense to repayment division and the Clery campus safety and security division.

Photo of Thomas Brugato Thomas Brugato

Thomas Brugato is special counsel in the firm’s Washington, DC office. His practice focuses on environmental matters, as well as civil and administrative litigation. He has experience advising clients on a wide variety of environmental issues, including under the Clean Air Act, Clean…

Thomas Brugato is special counsel in the firm’s Washington, DC office. His practice focuses on environmental matters, as well as civil and administrative litigation. He has experience advising clients on a wide variety of environmental issues, including under the Clean Air Act, Clean Water Act, RCRA, CERCLA, EPCRA, TSCA, FIFRA, the Endangered Species Act, and the Occupational Safety and Health Act.

Mr. Brugato has extensive experience with EPA’s Renewable Fuel Standard program. He also has particular expertise in advising companies on environmental-related issues arising in the context of product recalls (such as compliance with PHMSA’s hazardous materials transportation regulations), including recalls under NHTSA or CPSC jurisdiction. Finally, Mr. Brugato has significant experience advising clients on Indian law related issues, particularly relating to the Indian Gaming Regulatory Act and tribal sovereign immunity.

Photo of Lindsay Brewer Lindsay Brewer

Lindsay advises clients on environmental, human rights, product safety, and public policy matters.

She counsels clients seeking to set sustainability goals; track their progress on environmental, social, and governance topics; and communicate their achievements to external stakeholders in a manner that mitigates legal…

Lindsay advises clients on environmental, human rights, product safety, and public policy matters.

She counsels clients seeking to set sustainability goals; track their progress on environmental, social, and governance topics; and communicate their achievements to external stakeholders in a manner that mitigates legal risk. She also advises clients seeking to engage with regulators and policymakers on environmental policy. Lindsay has extensive experience advising clients on making environmental disclosures and public marketing claims related to their products and services, including under the FTC’s Green Guides and state consumer protection laws.

Lindsay’s legal and regulatory advice spans a range of topics, including climate, air, water, human rights, environmental justice, and product safety and stewardship. She has experience with a wide range of environmental and safety regimes, including the Federal Trade Commission Act, the Clean Air Act, the Consumer Product Safety Act, the Federal Motor Vehicle Safety Standards, and the Occupational Safety and Health Act. Lindsay works with companies of various sizes and across multiple sectors, including technology, energy, financial services, and consumer products.

Photo of Jessica Ke Jessica Ke

Jessica Ke is an associate in the firm’s Privacy and Cybersecurity and Advertising and Consumer Protection practice groups. Jessica advises clients on a wide range of regulatory and compliance issues, including compliance with state comprehensive privacy laws, advertising substantiation issues, and participation in…

Jessica Ke is an associate in the firm’s Privacy and Cybersecurity and Advertising and Consumer Protection practice groups. Jessica advises clients on a wide range of regulatory and compliance issues, including compliance with state comprehensive privacy laws, advertising substantiation issues, and participation in the regulatory process. Jessica also maintains an active pro bono practice.