All Wrapped Up: The Past, Present and Future of Recycled Content and Recyclability Claims

Life in the modern world requires a wide array of materials. From bags at the grocery store, packaging to protect goods delivered to stores and homes, components used to inventory and track products, and the electronics, furniture, household goods and so much more that make our daily lives more convenient; all reflect many choices about materials and their sourcing. Although most of us would not choose to go back to a less technologically advanced time, our society must grapple with the tradeoffs. One critical issue we are increasingly challenged to address are the myriad waste streams being generated by the production and consumption of our technological world.

Two recent events have reenergized a discussion on waste and how to address it. First, China’s “National Sword” policy, enacted in January 2018, banned the import of most materials that were previously accepted by China’s recycling processors. Later that year, the Ellen MacArthur Foundation and the UN Environment Programme (UNEP) launched a New Plastics Economy Global Commitment, to align businesses and governments behind a clear vision for a circular economy for plastics. [1] While circular economy concepts are not new,[2] the MacArthur Foundation pledge captured the world’s imagination and, as of 2021, over 500 businesses and organizations have committed to ambitious targets by 2025 towards the goal of a circular economy for plastics.[3]

Several countries also implemented policies to realize circular economy goals more broadly. For instance, in the EU, the Circular Economy Action Plan was adopted last year with several goals, including that products be “designed for reuse, repair, and high-quality recycling.”[4] Earlier this year, Australia published its National Circular Economy Roadmap for Plastics, Glass, Paper, and Tyres, focusing on circularity of these materials.[5] Finally, here in the U.S., the Environmental Protection Agency (EPA) this past November released the National Recycling Strategy, the first in a series of strategies by the Agency to promote a circular economy.[6]

The National Recycling Strategy is designed to help meet EPA’s goal of a 50 percent recycling rate by 2030,[7] but cooperation from states will be critical since they are generally responsible for developing plans, such as recycling programs, to manage nonhazardous waste.[8] Thus, as is often the case, much activity is occurring at the state level, where a growing number of laws have been introduced or enacted to restrict “single use” products or limit environmental marketing claims for plastics and other materials. The latter proposals often target recycled content and recyclability claims for packaging. We don’t expect things to slow down in 2022, and indeed the U.S. Federal Trade Commission (FTC) is scheduled to begin its review of the Guides for the Use of Environmental Marketing Claims (“Green Guides”).[9] The Green Guides outline the Commission’s position on when a range of environmental marketing claims may or may not be consistent with the general requirements for truthful advertising under the FTC Act of 1914.[10]

Many of the newly enacted and proposed state restrictions, however, seem contrary to both current safety protocols and FTC guidance. For example, the pandemic has increased, not decreased, interest in disposable non-woven masks, plastic gloves, and plastic ware, for sanitary reasons. Furthermore, to the extent improved waste management and reduced litter is an important goal, it is difficult to see how overbroad restrictions on truthful claims about the recyclability of products will foster enhanced recycling efforts, reduce fugitive waste, or further goals of national, uniform standards for green claims. In short, how can businesses help municipalities and consumers increase recycling rates for materials and products that are recycled at low rates today if they are limited in what they can say about improving those rates? Such limits could result in fewer choices of products and materials, and higher costs for all. It is no wonder, then, that businesses are redoubling efforts to create products and packaging that are recyclable and contain recycled content. Industry is also investing in new technologies, like molecular recycling, that promise to expand the type and volume of plastic products that could ultimately be recycled.[11]

To assess where things stand as we end this year, we review recent legislation and lawsuits targeting recycled content and recyclable claims. We also make some predictions for the year to come.

State Developments

Over the course of the past year, state legislatures have been very active in the environmental marketing space. Numerous bills have been introduced and considered, and some new laws enacted that impose new requirements on recyclability, extended producer responsibility (EPR), and mandated recycled content minimums. See Table 1. 

On the one hand, recyclability claims bills are aimed at restricting the standards which marketers must meet before they can make a “recyclable” claim for a product, package, or material. While the stated goals include minimizing consumer confusion, preventing contamination of the recycling stream, and potentially sparking an increase in recycling infrastructure, the breadth of some of the laws appear to pose possible First Amendment and other constitutional issues. In contrast, EPR and recycled content bills aim to promote recycling efforts, expand recycling infrastructures and increase markets for recycled materials. Policymakers should be asking whether the goal of maximizing recycling efforts and reducing waste will be impeded if businesses are barred from describing efforts to expand the limited recycling opportunities that exist for many materials today. 

With regard to recycled content legislation, several laws and bills require incorporation of specified percentages of post-consumer recycled (PCR) content into products or packaging. PCR includes material generated by “consumers”—including, in Washington and California, households and commercial, industrial, and institutional facilities in their role as end users—that can no longer be used for its intended purpose, and has been recovered or diverted from the waste stream.[12] PCR can be distinguished from pre-consumer recycled content, which is recovered or diverted from the waste stream and not reused during the original manufacturing process.[13] Many manufacturers are already familiar with PCR content requirements due to California’s rigid plastic packaging container (RPPC) program. California’s RPPC program requires product manufacturers to use RPPCs that meet one of five criteria, including being made of 25% PCR.[14] The new state recycled content bills seek to incrementally increase PCR content in plastic beverage containers well beyond 25% in the next few years and also extend recycled content requirements to a broader range of packaging. For example, Washington state’s Senate Bill (SB) 5022 requires plastic trash bags, or bags made of non-compostable plastic that are at least 0.7 mils thick, to contain 10% PCR content by January 1, 2023. A pending bill in New Jersey would impose PCR content thresholds on rigid plastic containers, plastic beverage containers, glass containers, paper carryout bags, reusable carryout bags made of plastic film, and plastic trash bags beginning at least two years after enactment.[15]

In turn, states are using EPR legislation to promote the recycling of certain end use products and packaging. Many states already have EPR laws in place for a variety of specific products, such as electronics, architectural paints, and mattresses. Now, the states are expanding EPR programs to include packaging. Although the specifics of each EPR law varies by state, these programs generally shift the cost of managing packaging waste to producers who introduce it into the state, instead of state municipalities or citizens. For example, Maine will require packaging producers to make annual payments to a stewardship organization that manages reimbursements to municipalities for eligible recycling and waste costs, as well as contributions to the state waste reduction and recycling investment funds.[16] The amount owed is determined based on the amount and type of packaging material that producers sell into Maine and may be reduced for packaging that is readily recyclable or contains an increased rate of recycled content. These laws will likely increase competition for—and costs of—access to clean streams of recycled material of a type and quality suitable for use in the product, which may, in turn, limit the ability of some companies to incorporate recycled content in certain applications.

Another trend in recent state legislation is restrictions on “recyclable” claims for both plastic and non-plastic products and packaging. California’s SB 343 is the first such law to be enacted.[17] (For a detailed discussion on SB 343, please see here.) To be “recyclable” under SB 343, a product or packaging must, among other criteria, be of a material type and form that is, based on state data, collected in recycling programs for jurisdictions that collectively encompass at least 60% of the state jurisdictions. Products or packaging that are not recycled through curbside recycling programs (e.g., store drop-off or takeback programs) are considered “recyclable” only if the non-curbside program recovers at least 60% of program material and “the material has sufficient commercial value to be marketed for recycling and be transported at the end of its useful life to a transfer, processing, or recycling facility to be sorted and aggregated into defined streams by material type and form.”[18] After January 1, 2030, the minimum recovery threshold will increase to 75%.

Recyclability claims for any product or packaging that does not meet these criteria will be considered deceptive or misleading, including the use of the chasing arrows symbol (the Mobius loop and variants “including, but not limited to, one or more arrows arranged in a circular pattern or around a globe”), the arrow design surrounding the plastic resin identification code (RIC), or any other symbol interpreted under the new state law to indicate “recyclability.” However, the FTC Guides establish that inconspicuous use of the plastic RIC does not per se constitute a “recyclable claim,[19] and offer many examples of appropriate disclaimers or qualifiers that would assure that a recyclable or other claim is not misleading. SB 343 is silent on the topic of disclaimers, but to the extent the state intends to impose sweeping, enforceable restrictions on any use of a term such as “recyclable” without regard to the inclusion of qualifiers or disclaimers that clarify the limited scope of any recycling claim, the law may be vulnerable to a First Amendment challenge.

Although the FTC has refused to recognize most test and laboratory standards as safe harbors for environmental claims, on grounds that these may not reflect real-world conditions,[20] the states seem more willing to experiment and expressly recognize specific standards. Of course, embedding a specific standard into legislation can create future problems as standards and technologies change, but states are acting, nonetheless. With regard to plastics, SB 343 references protocols established by the Association of Plastic Recyclers (APR). The law seeks to address the recycling compatibility of additives and packaging components by prohibiting “recyclable” claims for plastic packaging that includes “components, inks, adhesives, or labels that prevent the recyclability of the packaging according to the APR Design® Guide.” In other words, a package made with an otherwise recyclable material may not be claimed to be “recyclable” if it includes an unremovable closure or other element made from an incompatible material, as determined by APR. As another example, Oregon’s SB 582 requires that roll carts, bins, and containers purchased by local governments’ service providers be made from at least 10% PCR and certified by an independent verification standard, such as APR’s PCR Certification Program. 

While the landscape continues to evolve, Table 1 provides a short overview of some specific enacted and pending state laws.