A Battle Over Plastic Recycling Claims Heats Up in California Over ‘Truth in Labeling’ Law

Two environmental organizations are challenging a draft state report on California’s “Truth in Labeling” recycling law, saying the preliminary data it contains could allow companies to make broader plastics recycling claims than the 2021 law allows and reveals potentially illegal exports of plastics waste to Mexico.

The report is based on data obtained from a survey of facilities that collect, sort and bale a variety of waste for potential recycling, including paper, metals and plastic. 

Until 2021, California did not set specific standards for when a recycling logo could be used on products. Then lawmakers passed SB343, which prohibits use of the “chasing arrows” symbol or any other indicator of recyclability on products and packaging unless certain criteria are met.

The California Department of Resources Recycling and Recovery, known as CalRecycle, is holding a public meeting today on its survey findings, which it says can be used to evaluate if materials meet the criteria to be labeled or marketed as recyclable. 

The issue is complex because there are many different kinds of plastics made with thousands of chemicals, many of them toxic. Plastics were not designed to be recycled, and non-recyclable or incompatible plastics can “contaminate” bales of recyclable plastics, as can other types of waste such as paper or metal. 

A state Senate analysis of SB343 at the time it was passed reported that “the vast majority of single-use items are used once and then landfilled, incinerated or dumped into the environment. This dismal recycling rate is due to many factors, most notably a severe drop in the market for recycled material and the low cost of virgin petroleum.”

Still, Californians “dutifully fill their blue bins with items they believe are recyclable, which contaminate the recycling stream and make it more costly to sort and clean the truly recyclable material,” the analysis said. 

Nationally, only about 6 percent of plastic gets recycled.

One of the key metrics CalRecycle uses to evaluate recyclability is the contents of compressed bales of plastic waste created at waste sorting and handling facilities. Its survey, published in late December, shows that there is too much contamination by non-recyclable plastics in the bales for the state to consider any of them to be labeled as recyclable, according to an assessment by the two environmental organizations, the Basel Action Network and The Last Beach Cleanup. 

The Basel Action Network tracks the movement of toxic waste globally under the United Nations’ Basel Convention, and The Last Beach Cleanup, a Southern California group, has fought company claims of plastic recyclability.

What’s worse, the two groups claim, is that too many of those bales are still being exported despite the contamination to Mexico and other countries, where much of the plastic is being burned or sent to landfills, not recycled.

“As a state, California is still misleading its own citizens and the world when it comes to pretending to be able to recycle most of our plastic wastes,” said Jan Dell, an independent engineer and founder of The Last Beach Cleanup. “It is high time we stop the disingenuous games and enforce the truth in recycling laws the citizens called for.”

CalRecycle is reviewing the analysis by the two environmental organizations, said Lance Klug, a CalRecycle spokesman. “All feedback … will be considered as CalRecycle continues to work on (its) report.”

The conclusions reached in CalRecycle’s final report, expected in about two months, could have far-reaching implications because California’s “Truth in Labeling” law, passed in 2021, could be a model for other states.

Recycling Claims Are Often Misleading

For decades, consumers relied on the “chasing arrows” symbol on plastic containers to let them know whether the materials they were made of could be recycled.

Across the country, seven categories of plastics may carry the symbol plus a number—1 through 7—indicating that a container is made of a particular kind of plastic and is recyclable, even though often it is not.

Plastic bottles and jugs numbered 1 and 2 are made of polyethylene terephthalate (PET) and high-density polyethylene (HDPE) and are the most commonly recycled plastics, according to a 2022 Greenpeace report that included Dell’s research. Numbers 3 through 7—polyvinyl chloride, or PVC; low-density polyethylene, or LDPE; polypropylene, or PP; polystyrene, or PS; and mixtures of various plastics—are rarely, if ever, recycled, according to Dell. 

In recent years, there’s been a growing awareness that plastic recycling claims are often misleading at best, or outright wrong, at worst. As a result, and in large part because of lawsuits filed by The Last Beach Cleanup, companies that sell products in plastic containers or stores that made claims about the recyclability of their plastic bags have begun to modify the labels to downplay their recyclability, or get rid of the labels altogether.

The Federal Trade Commission last year began weighing its first changes in 10 years to its Green Guides, which establish guidelines for companies’ environmental advertising and labeling claims, including those for recycling. Those rules go far beyond plastic, to include concepts such as “net zero” related to greenhouse gas emissions, biodegradability, sustainability and organic products.

In California, CalRecycle is the agency responsible for regulating recycling and has been drafting rules and taking other steps required by SB343, including conducting the survey of facilities that sort and bale waste plastic.

Its SB343 report is technical and does not include a clearly identifiable list of types of plastic products that it considers worthy of recyclable labels that say “recyclable.” CalRecycle said its list “is not a determination of recycling labeling eligibility or legality” because the agency does not have the legal authority under SB343 to make such determinations.

Instead, CalRecycle’s report includes data-dense charts and leaves the interpretation to the public.

But CalRecycle, in a report sent to the state legislature in December on a related law, SB54, the Plastic Pollution Prevention and Packaging Producer Responsibility Act, found that for the purposes of SB343 plastics numbered 1, 2 and 5, were generally recyclable. 

In the same report, the agency also published a list of “potentially recyclable” categories of materials, including 11 categories of plastics, ranging from number 1 PET bottles and jugs and PET thermoformed cups, lids, plates, and trays, and various HDPE (2) bottles, jugs, jars, pails and buckets, as well as PP (5) bottles, jugs and jars, as well as thermoformed containers, lids or trays.

Dell said she believes that at least some of those claims of recyclability are false, citing a dearth of PET thermoform recyclers and PP recyclers in the United States.

Beyond the potential problems of labeling specific plastics as recyclable, there is the problem presented by the contaminated bales, which contain too much non-recyclable plastic, according to BAN and The Last Beach Cleanup.

Since China began cracking down in 2013 on the amount of contaminated plastic countries were sending it, California plastic waste exports to Mexico have climbed from less than 5,000 metric tons per year in 2015 to 43,875 metric tons per year, with an estimated 37,138 tons exported to Mexico last year, according to the report.

The United States is not a party to the Basel Convention, but California requires its rules to be consistent with Basel rules, said Jim Puckett, executive director of BAN. 

“While we applaud the fact that California has recognized the Basel Convention in its own laws,” said Puckett, “we cannot applaud the fact that after passage of these laws, California then promptly ignored the implementation and enforcement necessary to fulfill the legal requirements.” Specifically, he said he was referring to provisions in SB343 and another law, AB881, which deals with waste exports and was passed in 2021.

Generally, the Basel Convention allows contamination thresholds of between 2 percent and 5 percent, but according to the environmentalists, CalRecycle reported contamination in bales of plastic waste at levels ranging from 6 percent to 17 percent. 

The BAN/Last Beach Cleanup assessment concludes that all California plastic waste bales are illegal to export from California to any other country other than Canada, due to too much contamination by non-recyclable plastics. Such exports take place on a daily basis from California to countries such as Mexico and Malaysia, the environmental groups said.

Confusion Over Data

Other environmental advocates saw reason for optimism in CalRecycling’s survey and report to the legislature, or were withholding judgment for now.

Anja Brandon, associate director of U.S. plastics policy at Ocean Conservancy, said the findings “reaffirm what we already knew—that most plastics are not designed to be recyclable.

“Since the majority of single-use plastics are made of unrecyclable plastics, they end up contaminating recycling streams or in our ocean and environment,” she said. “This study will determine what we are going to see on our shelves in California over the next 10 years, and ultimately help eliminate consumer confusion over what is and is not recyclable.”

Nick Lapis, advocacy director for Californians Against Waste, described CalRecycle’s survey as confusing and inconsistent with his own knowledge and experience visiting facilities that sort and bale plastic waste but has the potential to help consumers.

“This is an important first step toward eliminating recyclability claims that amount to nothing more than greenwashing,” Lapis said. “I’m withholding judgment until we can review some of the underlying data.”

He also said he hopes “the Federal Trade Commission and legislatures in other states implement similar standards.”

For Dell’s part, she asserts the confusion is by design.

“We’re doing CalRecycle’s job for them and clearing up the confusion,” Dell said. “This was the best opportunity to stop CalRecycle’s effort to turn SB343 into a ‘Lies in Labeling law,’” she said.