A pioneering California law meant to sharply limit use of the familiar \u201cchasing arrows\u201d recycling symbol has been blocked by a federal judge who said it probably violates the First Amendment.<\/p>\n
In a preliminary injunction issued earlier this month, U.S. District Judge William Hayes halted enforcement of SB 343 after food, packaging and retail groups sued, finding that key provisions were \u201cunconstitutionally vague\u201d and likely infringed protected commercial speech. Enforcement of the law, passed in 2021, was expected to start this fall.<\/p>\n
The decision is a blow to environmental advocates, who had hoped to remove the familiar symbol from a huge array of plastic products, in line with a statewide study showing that only a fraction are widely collected and actually recycled. SB 343 said only goods and packaging accepted by recycling programs serving at least 60 percent of Californians and then actually sorted for recycling \u2014\u00a0not collected and thrown away \u2014\u00a0 could bear the chasing arrows.<\/p>\n
Hayes\u2019 constitutional reasoning surprised supporters of SB 343 because similar arguments against environmental marketing regulations have historically struggled in court.<\/p>\n
To support our nonprofit environmental journalism, please consider disabling your ad-blocker to allow ads on Grist. Here's How<\/p>\n
\u201cThe First Amendment protects free expression, not a corporation\u2019s right to commit consumer fraud,\u201d said Nick Lapis, director of advocacy for the nonprofit Californians Against Waste. \u201cWe see this exact playbook every time the plastics industry is asked to stop misleading the public \u2014\u00a0they suddenly hide behind the Constitution.\u201d<\/p>\n
In his decision, Hayes applied a standard four-part test to determine whether SB 343 would unduly restrict companies\u2019 speech rights. The law passed the first two tests handily, as it regulates \u201cpotentially misleading\u201d speech and was intended to serve California\u2019s legitimate interests in reducing consumer confusion and improving recycling rates.<\/p>\n
The next tests are where the law ran into trouble. Hayes, siding with the industry trade groups, argued that the legislation would not advance those \u201clegitimate interests.\u201d Rather than encouraging companies to redesign their products and packaging to comply with California\u2019s real-world recyclability criteria, he said the law would prompt them to remove the recycling symbol altogether. Products recycled at a rate below the 60 percent threshold that the law requires would no longer make it into recycling bins, which could in theory leave more of them bound for the landfill.<\/p>\n
Hayes said a less stringent regulation could have better advanced California\u2019s goals. For instance, the state could have passed a law requiring more descriptive qualifiers alongside the recycling symbol. He offered a hypothetical example of a label explaining that an item is \u201caccepted by recyclers in the greater Los Angeles area but nowhere else in California.\u201d Such a label would provide consumers with more and better information, he argued, but would not be allowed under SB 343.<\/p>\n
To support our nonprofit environmental journalism, please consider disabling your ad-blocker to allow ads on Grist. Here's How<\/p>\n
Heidi Sanborn, executive director of the nonprofit National Stewardship Action Council, said the judge\u2019s reasoning reflected a fundamental misunderstanding of the problems facing California recycling systems. People are throwing too much stuff into their blue bins, she said. In addition to not actually being recyclable, much of this refuse \u2014 including plastic bags and other plastic films \u2014 can gum up sorting machines, causing operational delays and creating safety risks.<\/p>\n
\u201cPeople are wish-cycling, they\u2019re so desperate to recycle,\u201d Sanborn told Grist. \u201cWe have to pull all this [contamination] out, which is very labor-intensive, and then everybody wants to know why their bills go up.\u201d\u00a0<\/p>\n
Industry groups welcomed the injunction, saying it would prevent California from \u201ccensoring truthful information on packaging.\u201d<\/p>\n
Scott Hochberg, general counsel and litigation director for the nonprofit Earth Island Institute, said he\u2019s seen free speech challenges to environmental rules many times before. Big polluters have frequently invoked the First Amendment to oppose regulations that require them to disclose information \u2014 like their greenhouse gas emissions \u2014\u00a0or tone down statements about their sustainability.<\/p>\n
\u201cWhat\u2019s relatively new and concerning is when these arguments succeed and states are blocked from implementing common-sense initiatives to protect their residents,\u201d he said.<\/p>\n