Federal Court Preliminarily Enjoins California’s SB 343 Recyclability Labeling Law

SB 343 requires businesses to determine that their products meet recycling access, sorting, and design requirements, or else remove recyclability claims from products and packaging manufactured after October 4. In its decision, the court ruled that plaintiffs, a coalition of trade associations, were likely to succeed on their claims that the law is unconstitutionally vague and violates the First Amendment.

SB 343 Summary

SB 343 requires that products or packaging not include recyclability claims, including the popular “chasing arrows” symbol, unless they meet the law’s definition of recyclability. The law treats a product or packaging as recyclable if: 

1. At least 60% of California residents have access to recycling collection for the material comprising the product or packaging. 
2. At least 60% of California recycling systems sort the material for recycling. 
3. The product or packaging meets design standards to ensure recyclability. 
4. The product or packaging meets limitations on the use of perfluoroalkyl or polyfluoroalkyl substances (PFAS).

We summarized key implications of the law here.

Plaintiffs’ Challenge

A coalition of trade associations representing the food, packaging, retail, and consumer products industries challenged SB 343 on two grounds. First, they argued that four provisions of the law are unconstitutionally vague under the Fourteenth Amendment. Second, they argued the law is an improper regulation of commercial speech under the First Amendment. 

The Decision 

Vagueness

The court held that plaintiffs are likely to succeed on their claims that four statutory provisions are vague. Two provisions require that recyclable materials “routinely become feedstock” and be recycled “consistent with the Basel Convention.” The court found both vague because “routinely” sets no threshold for how often reprocessing must occur and compliance with the Basel Convention is unclear. The court added that two other provisions regarding product designs that “prevent” recyclability are vague, because it is unclear what types of designs “prevent” recyclability.

The court ruled that these provisions are severable from the rest of SB 343 and went on to consider if the remainder of SB 343 violates the First Amendment. 

First Amendment

The court applied the US Supreme Court’s intermediate scrutiny test for regulations on commercial speech. The court held that California has substantial interest in improving recycling rates and reducing consumer confusion, but that SB 343 does not directly advance those interests. In part, the court relied on evidence that businesses are not redesigning their products and packaging to comply with the law but instead removing recyclability claims. As a result, consumers receive less, not more, information about recycling, the court reasoned. The court also held that the law was more extensive than necessary because it does not allow for limited recyclability claims such as “recyclable where facilities exist – check locally.” 

Key Takeaways 

• The decision does not end SB 343 litigation. California may appeal the decision, or the court may proceed toward a final judgment. 
• The ruling signals significant vulnerabilities in SB 343. The court’s ruling that plaintiffs are likely to succeed on both their vagueness and First Amendment claims suggests substantial obstacles to the law surviving judicial review in its current form.
• The scope of the injunction is uncertain. The preliminary injunction applies to the California Attorney General and “all those in privity or acting in concert” with him. It is not clear from the ruling whether the injunction protects all businesses or only members of the plaintiff trade associations. Additionally, it is uncertain whether the court did or can enjoin enforcement of SB 343 by local district attorneys or private plaintiffs who are not parties to the lawsuit.
• The regulatory landscape remains uncertain. Businesses that had begun modifying packaging or removing recyclability claims in advance of the October deadline face uncertainty about whether, when, and in what form SB 343’s requirements may ultimately take effect.
• Private litigation exposure outside of SB 343 continues. The preliminary injunction does not affect pending or future private litigation challenging recycling claims (e.g., deceptive or false advertising). CalRecycle’s Material Characterization Study has been cited in recent consumer class action lawsuits in California. Businesses should continue to evaluate their litigation exposure for recyclability claims regardless of the injunction.