California panel urges crackdown on 'illegal' bag recyclability claims

A California government commission tasked with improving recycling is asking the state's attorney general and other agencies, for the first time, to crack down on what it says are illegal environmental labeling claims on plastic bags and film.

The California Statewide Commission on Recycling Markets and Curbside Recycling sent a letter in December to the agency CalRecycle and Attorney General Rob Bonta saying that its review of recycling messages on bags and film turned up dozens of violations of state and federal laws.

Specifically, the commission said that claims about recyclability, including using versions of the popular chasing arrows symbol, confuse consumers and make them think, incorrectly, that the flexible plastic materials can be recycled in regular curbside bins. It wants the state to require those labels to be removed.

But the commission's proposal is drawing pushback from the industry, which points to popular labels like the How2Recycle system as helping to educate the public about when materials can be put in curbside bins and when, as in the case for bags and film, they should be taken to store drop-off locations.

They argue that removing the recycling labeling altogether will send more plastic to landfills and harm in-store bag recycling efforts. And they say that their labels comply with federal and state laws.

The commission sent a letter to CalRecycle and Bonta Dec. 3 giving 80 examples of companies selling flexible plastic packaging in the state with recyclability claims it said violate laws — naming specific retailers, brands and plastics firms.

"Based on existing California law, it is our opinion that recyclable labels used on many plastic bags and films in California described below are not legal … and are contributing to consumer confusion and contamination," the commission wrote. "We write to request that California's existing laws on labeling of plastic bags be enforced."

Specifically, it said it wanted "retailers and product manufacturers [to] be required to remove the word 'recycle,' 'recyclable' and/or the recycling symbol from plastic bags and film."

The advisory group's opinion does not carry legal weight by itself, but it comes amid stepped-up scrutiny of such claims.

For example, the California Legislature last year passed a first-in-the-nation law, Senate Bill 343, making it much tougher to put recyclability labels and marketing on plastic packaging.

As well, environmental groups have filed private lawsuits over such claims, and Canada's government Jan. 6 announced its own C$3 million (US$2.36 million) settlement with Keurig Canada Inc. over "misleading" recyclability labels on plastic K-Cup pods.

Heidi Sanborn, the chair of the commission, said the group is following its charter and giving advice to the state government on how it can start to fix challenges in recycling. She called misleading labeling "low-hanging fruit."

"We gave a bunch of examples of how we think those claims are being misused and abused," she said. "We were tasked with reducing contamination in curbside streams and giving advice on how to do that, and what our advice is, is 'enforce the law.'"

Bonta's office did not respond to a request for comment, but CalRecycle said it looked forward to discussing the issue with the commission, which was created by the state Legislature in 2019.

"CalRecycle shares the goal of ending deceptive labeling and is equally committed to truth and enforcement," said spokesman Lance Klug.

While the agency did not comment on the specific examples the commission provided, Klug did point to SB-343 as a "critical first step for California to increase transparency in recycling labeling and end the misleading use of the chasing arrows symbol."

"SB-343 will also clarify what is and isn't recyclable and help Californians make informed decisions when purchasing products," he said. "Under that law, 60 percent of the state will have to collect and recover materials for recycling to earn a recyclable label."

SB-343 does not fully take effect until 2025. The commission said it was relying on older laws in making its recommendations.

Companies say they are following the law with their labels.

Flexible plastic packaging maker Sealed Air Corp., for example, told the commission in a November hearing that it follows the widely used How2Recycle label program, which is run by the Sustainable Packaging Coalition.

A Sealed Air executive said the How2Recycle program follows Federal Trade Commission guidelines that say that if 60 percent of people have access to store drop-off recycling, a package can carry recycling messages directing consumers to those locations.

"The How2Recycle label is being increasingly adopted across the U.S.," said Terry Grill, a regional sustainability director with Sealed Air, who said consumers understand the store drop-off messaging. "We feel we should continue to promote that. Because there's no harmonization across the United States, it's very difficult for consumers to know what to do."

But commission members argued that recycling symbols on film and bags encourage consumers to put them in curbside bins.

As well, the commission argues that the store drop-off system in California is not working well, with locations that are frequently difficult for consumers to find.

"They are so few and far between," Sanborn said. "Based on our individual experiences, from the commissioners, we've gone to multiple places where we thought there was a [drop-off] site because it said it on the website, and they're not there."

She said the public is frustrated about complicated recycling messages — a message she's shared with plastics companies.

"This is what I said directly to plastic bag manufacturers I'm on the phone with. They said, 'What is the problem with that,' and I said, 'Do you think it's nice to basically send people on a wild goose chase [to recycle]?'" Sanborn said. "I don't.

"[Consumers are] going to have to go to 30 stores to recycle a damn bag? No, they're going to throw it in the trash," she said. "Right now the messaging they're getting on labels is not clear. It's not even truthful."

The commission's letter pointed to research from The Recycling Partnership that said more than half of Californians mistakenly think plastic bags are accepted in curbside recycling.

The letter called plastic bags a "top contaminant" because they can repeatedly gum up recycling lines at processing plants, and it noted a CalRecycle study that found that plastic bags, film and wraps are the largest contaminants in curbside recycling bins, at 12 percent by weight.

The commission said plastic film in curbside bins raises costs for material recovery facilities that process the materials, puts workers at risk from having to clean out equipment and lowers the value of other recyclables that cities sell.

"Plastic contamination lowers the quality and material value of the paper and cardboard bales," the commission said.

The plastic bag industry defended store drop-off efforts and said that recycling of materials not accepted in curbside bins requires more public education like labels, not less. It noted that California used to require stores to take back plastic bags.

"While the California law that required retailers to maintain drop-off locations expired, many retailers continue to offer this convenient option for consumers," said Zachary Taylor, executive director of the American Recyclable Plastic Bag Alliance. "Removing labels educating consumers on how to properly recycle these products will drive more plastic into landfills.

"Helping consumers to recycle products properly, particularly materials not accepted at curbside, requires more communication, not less," he said.

Grill, from Sealed Air, said the industry is working to address problems in recycling flexible plastics, such as a pilot project to upgrade one Pennsylvania materials recovery facility to sort and recycle film plastics from curbside programs.

As well, she said industry coalitions are working on boosting funding to increase recycling of flexible films and said companies want to solve problems of film contamination.

"'We know it's not appropriate for us to put products on the market and then expect taxpayers to bear the burden of creating a circular economy," Grill said. "We need to participate as an industry in the solution."

But, she said, policymakers also must consider that packaging needs to protect products, and she pointed to studies that have found lighter-weight plastic packaging can reduce greenhouse gas emissions in transport.

"In general, there is a greater carbon impact from the product itself than from the packaging," Grill said. "It's really important that we don't sacrifice the performance of the packaging in order to make it recyclable, when it fact we may cause more damage to the product itself."

A representative from Amazon told the commission that it was deferring to industry partners like the How2Recycle program on labeling.

"Right now we really feel like the How2Recycle logo is a good option," said Kayla Fenton, a principal product manager with the company. "The intent behind the label is to streamline and make it easier for consumers to be aware of what's recyclable."

She said Amazon was putting considerable resources into developing a flexible paper package that can be recycled in curbside systems, but she said it could take several years for that to commercialize.

Fenton said the company has been trying to rely less on bulky boxes in shipping and use more flexible packaging materials because they reduce space needed on trucks and "allows us to be more carbon-efficient across our entire supply chain."

But commission members pushed back on the companies around recyclability, saying that the flexible plastic materials are too costly for the material recovery facilities that do the first round of processing of curbside recycling in the state.

"Our MRFs in California are struggling to survive with all the contamination," said Jan Dell, a member of the commission and head of the nongovernmental organization The Last Beach Cleanup. "They certainly don't have the funds to buy a lot of advanced equipment because the reality is this material, when it's post-consumer, is worthless.

"You may defend the use of plastic packaging but please help stop it from wrecking curbside recycling with these labels, these big recycling symbols, that give people the wrong impression they can put it in their curbside bins," Dell said.