Two New California Laws Expand Regulation of Greenwashing Claims 

February, 2022 - David Longinotti

Key Points

SB 343 regulates use of “chasing arrows” recycling symbol; AB 1201 extends composting regulations to all products including home compostable claims. Food manufacturers face public and private enforcement risks.



SB 343 – Truth in Labeling for Recyclable Materials

SB 343 amends existing law that makes it unlawful to use any misleading environmental marketing claims on product packaging. Specifically, SB 343 amends Public Resources Code Section 42355.51 to provide that the misuse of a “chasing arrows” symbol, the term “recyclable,” or any other suggestion that a material is recyclable, is prohibited. However, manufacturers may use these claims if the packaging or material is considered recyclable in the State of California pursuant to regulations to be adopted by the Department of Resources Recycling and Recovery (also known as CalRecycle).


Manufacturers using the “chasing arrows” symbol will need to maintain records to justify their advertising claims. The existing recordkeeping requirements of manufacturers, which currently apply to the term “recyclable,” will extend to the use of the chasing arrows symbol and other environmental marketing claims.


Compliance with the requirements of SB 343 will come into effect either (1) 18 months after the date CalRecycle publishes the first material characterization study of what is recyclable, or (2) January 1, 2024, whichever is later.1


Violation of SB 343 is a misdemeanor. Manufacturers who misuse the chasing arrows symbol under the new law will also face claims under California’s Unfair Competition Law as well as class action lawsuits brought under the California Legal Remedies Act.


AB 1201 – Biodegradable/Compostable Claims on Packaging/Labeling

AB 1201 amends existing law that prohibits a person from selling plastic product that is labeled as compostable or home compostable unless that product meets specified criteria. Specifically, AB 1201 amends Public Resources Code Section 42356 to prohibit the offer for sale or sale of all products labeled as “compostable” or “home compostable,” unless at the time of sale, the product meets the (a) specifications of the American Society for Testing and Materials (ASTM) or, if applicable, (b) the standards of the “OK compost HOME” certification. The applicable ASTM standard for testing the biodegradability of plastics and other solid materials is ASTM D6400.


AB1201 does not reference a separate ASTM standard for home composting. Products labeled as “home compostable” must obtain the OK compost HOME certification. OK compost HOME is a certification that satisfies the standards adopted by TÜV Austria, which uses the European Norm 13432.2 A product that is labeled with the OK compost HOME certification will decompose at lower temperatures and may be composted at the consumer’s home.


Unlike SB 343, AB 1201 does not establish a criminal offense for violators, nor does it create any express civil liability. However, manufacturers who mislabel products as being compostable or home compostable under the new law will face claims under California’s Unfair Competition Law, including claims for injunctive relief and damages, as well as civil penalties if alleged violations are sought to be enforced by government agencies.


Practical Insights

These two new greenwashing laws will likely have implications for manufacturers that distribute their products nationwide. Manufacturers should take note and comply with the recordkeeping requirements of these laws to establish the basis of a defense against future greenwashing claims. Manufacturers should also seek appropriate representations and warranties from their suppliers to allocate risk and assure compliance.



1 Public Resources Code, Section 42355.51(b)(2)


2 “EN 13432:2000 Packaging” is the European standard applied to compostable packaging in accordance with the European Directive on Packaging and Packaging Waste (94/62/EC).


 



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