Bill Text: CA SB343 | 2021-2022 | Regular Session | Amended

California Senate Bill 343 (Prior Session Legislation)

NOTE: There are more recent revisions of this legislation. Read Latest Draft

Bill Title: Environmental advertising: recycling symbol: recyclability: products and packaging.

Spectrum: Partisan Bill (Democrat 16-0)

Status: (Passed) 2021-10-05 - Chaptered by Secretary of State. Chapter 507, Statutes of 2021. [SB343 Detail]

Download: California-2021-SB343-Amended.html

Amended IN Assembly July 08, 2021

Amended IN Assembly June 28, 2021

Amended IN Assembly June 14, 2021

Amended IN Senate May 20, 2021

Amended IN Senate April 08, 2021

Amended IN Senate March 17, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Senate Bill

No. 343

Introduced by Senator Allen
(Principal coauthors: Assembly Members Friedman and Lorena Gonzalez)
(Coauthors: Senators Archuleta, Caballero, Dodd, Eggman, Glazer, and Rubio)
(Coauthors: Assembly Members Cristina Garcia, Muratsuchi, Quirk, Luz Rivas, and Wood)

February 09, 2021

An act to amend Sections 17580 and 17580.5 of the Business and Professions Code, and to amend Sections 18015 and 42355.5 of, and to add Section 42355.51 to, the Public Resources Code, relating to environmental advertising.

LEGISLATIVE COUNSEL'S DIGEST

SB 343, as amended, Allen. Environmental advertising: recycling symbol.

(1) Existing law declares that it is the public policy of the state that environmental marketing claims, whether explicit or implied, should be substantiated by competent and reliable evidence to prevent deceiving or misleading consumers about the environmental impact of plastic products and that, for consumers to have accurate and useful information about the environmental impact of plastic products, environmental marketing claims should adhere to uniform and recognized standards.

This bill would further declare that it is the public policy of the state that claims related to the recyclability of a plastic product be truthful and that consumers deserve accurate and useful information related to how to properly handle the end of life of a plastic product.

This bill would require the Department of Resources Recycling and Recovery, on or before January 1, 2023, to update certain regulations to include the types and forms of plastic products and packaging for which a claim of recyclability may be made. The bill would require the department director to consider specified criteria to determine the material types and forms that are recyclable, and require the department, based on those specified criteria, to develop and publish a list of the material types and forms determined to be recyclable. The bill would require the department to update the list every ~~five~~ 5 years, beginning on January 1, 2027. The bill would, if a material type and form is not on the list, or is removed from the list, prohibit a person from offering for sale, selling, distributing, or importing into the state any product or packaging manufactured 18 months after the list is published or updated if the product or packaging displays a chasing arrows symbol, as defined, a chasing arrows symbol surrounding a resin identification code, or any other symbol or statement indicating the product or packaging is recyclable, or directing the consumer to recycle the product or packaging. The bill would authorize a producer, or group of producers, that seeks to have a material type and form that does not meet the specified criteria included on the list to submit a plan to the department detailing how and by what date the product type and form will meet the criteria. The bill would require the department to review the plan and determine if the material type and form will meet the criteria by the date prescribed in the plan if the plan is implemented. If the department determines that the plan will meet these requirements, the bill would require the department to approve the plan and to include that material type and form on the list, as specified. If the department rejects the plan, the bill would require the department to provide to the producer, or group of producers, that submitted the plan a written response clearly stating the reasons for rejecting the plan and to provide to the producer, or group of producers, an opportunity to resubmit the plan.

(2) Under existing law, a person who represents in advertising or on the label or container of a consumer good that the consumer good that it manufactures or distributes is not harmful to, or is beneficial to, the natural environment, through the use of environmental terms, is required to maintain in its records specified information and documentation supporting the validity of the representation, including, if applicable, whether the consumer good conforms with the uniform standards contained in the Federal Trade Commission Guidelines for Environmental Marketing Claims for the use of the term “recyclable,” among other terms. A violation of this requirement is a misdemeanor.

This bill would apply that recordkeeping requirement to a person who makes those representations through the use of a chasing arrows symbol, as defined, and would add to the required information and documentation for the use of the term “recyclable,” the use of a chasing arrows symbol, or other representation that advises consumers to recycle a consumer good, whether the consumer good meets the criteria for statewide recyclability, as specified above. A violation of these provisions would be a misdemeanor. The bill would therefore create a new crime and impose a state-mandated local program.

(3) Existing law requires all rigid plastic bottles and rigid plastic containers sold in the state to be labeled with a code that indicates the resin used to produce the bottles or containers, with specified numbers and letters placed in relation to a triangle.

This bill would prohibit the resin identification code from being placed inside a chasing arrows symbol, unless the department has determined that the rigid plastic bottle or rigid plastic container is recyclable in the state, as specified.

(4) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YES

The people of the State of California do enact as follows:

SECTION 1.

Section 17580 of the Business and Professions Code is amended to read:

17580.

(a) A person who represents in advertising or on the label or container of a consumer good that the consumer good that it manufactures or distributes is not harmful to, or is beneficial to, the natural environment, through the use of such terms as “environmental choice,” “ecologically friendly,” “earth friendly,” “environmentally friendly,” “ecologically sound,” “environmentally sound,” “environmentally safe,” “ecologically safe,” “environmentally lite,” “green product,” or any other like term, or through the use of a chasing arrows symbol or by otherwise directing a consumer to recycle a consumer good, shall maintain in written form in its records all of the following information and documentation supporting the validity of the representation:

(1) The reasons the person believes the representation to be true.

(2) Any significant adverse environmental impacts directly associated with the production, distribution, use, and disposal of the consumer good.

(3) Any measures that are taken by the person to reduce the environmental impacts directly associated with the production, distribution, and disposal of the consumer good.

(4) Violations of any federal, state, or local permits directly associated with the production or distribution of the consumer good.

(5) Whether, if applicable, the consumer good conforms with the uniform standards contained in the Federal Trade Commission Guidelines for Environmental Marketing Claims for the use of the terms “recycled,” “recyclable,” “biodegradable,” “photodegradable,” or “ozone friendly.”

(6) If the person uses the term “recyclable,” uses a chasing arrows symbol, or otherwise directs consumers to recycle the consumer good, whether the consumer good meets all of the criteria for statewide recyclability pursuant to Section 42355.51 of the Public Resources Code.

(b) Information and documentation maintained pursuant to this section shall be furnished to any member of the public upon request.

(c) For purposes of this section, a wholesaler or retailer who does not initiate a representation by advertising or by placing the representation on a package shall not be deemed to have made the representation.

(d) It is the intent of the Legislature that the information and documentation supporting the validity of the representation maintained under this section shall be fully disclosed to the public, within the limits of all applicable laws.

(e) This section does not apply to a consumer good that is required by any federal or California law or regulation to display a chasing arrows symbol, including, but not limited to, Section 103(b)(1) of the federal Mercury-Containing and Rechargeable Battery Management Act (42 U.S.C. Sec. 14322(b)(1)) and Section 25215.65 of the Health and Safety Code.

(f) For purposes of this section, “chasing arrows symbol” means an equilateral triangle, formed by three arrows curved at their midpoints, depicting a clockwise path, with a short gap separating the apex of each arrow from the base of the adjacent arrow. “Chasing arrows symbol” also includes variants of that symbol that are likely to be interpreted by consumers as an implication of recyclability, including, but not limited to, one or more arrows arranged in a circular pattern or around a globe.

SEC. 2.

Section 17580.5 of the Business and Professions Code is amended to read:

17580.5.

(a) It is unlawful for any person to make any untruthful, deceptive, or misleading environmental marketing claim, whether explicit or implied. For the purpose of this section, “environmental marketing claim” shall include any claim contained in the “Guides for the Use of Environmental Marketing Claims” published by the Federal Trade Commission.

(b) (1) It shall be a defense to any suit or complaint brought under this section that the person’s environmental marketing claims conform to the standards or are consistent with the examples contained in the “Guides for the Use of Environmental Marketing Claims” published by the Federal Trade Commission.

(2) Paragraph (1) does not apply to claims for violations of subdivision (d) of Section 18015 of the Public Resources Code and of subdivisions (a) and (b) of, and paragraph (2) of subdivision (f) of, Section 42355.51 of the Public Resources Code.

SEC. 3.

Section 18015 of the Public Resources Code is amended to read:

18015.

(a) All rigid plastic bottles and rigid plastic containers sold in the state shall be labeled with a code that indicates the resin used to produce the rigid plastic bottle or rigid plastic container. Rigid plastic bottles or rigid plastic containers with labels and basecups of a different material shall be coded by their basic material. The code shall consist of a number placed inside a triangle, and letters placed below the triangle. The numbers and letters used shall be as follows:

1 = PETE (polyethylene terephthalate)

2 = HDPE (high density polyethylene)

3 = V (vinyl)

4 = LDPE (low density polyethylene)

5 = PP (polypropylene)

6 = PS (polystyrene)

7 = OTHER (includes multilayer)

(b) A “7” shall appear below the resin abbreviation when the bottle or container is composed of more than one layer of that resin.

(c) The Division of Recycling in the Department of Resources Recycling and Recovery shall maintain a list of abbreviations used on labels pursuant to subdivision (a) and shall provide a copy of that list to a person upon request.

(d) The resin identification code required pursuant to subdivision (a) shall not be placed inside a chasing arrows symbol, as defined in subdivision (f) of Section 17580 of the Business and Professions Code, unless the product has been determined to be recyclable in the state pursuant to Section 42355.51.

SEC. 4.

Section 42355.5 of the Public Resources Code is amended to read:

42355.5.

(a) The Legislature finds and declares that it is the public policy of the state that environmental marketing claims, whether explicit or implied, should be substantiated by competent and reliable evidence to prevent deceiving or misleading consumers about the environmental impact of plastic products. For consumers to have accurate and useful information about the environmental impact of plastic products, environmental marketing claims should adhere to uniform and recognized standards, including those standard specifications established by the American Society for Testing and Materials.

(b) The Legislature further finds and declares that it is the public policy of the state that claims related to the recyclability of a plastic product be truthful in practice and accurate. Consumers deserve accurate and useful information related to how to properly handle the end of life of a plastic product.

SEC. 5.

Section 42355.51 is added to the Public Resources Code, to read:

42355.51.

(a) A person shall not offer for sale, sell, distribute, or import into the state any product or packaging for which a deceptive or misleading claim about the recyclability of the product or packaging is made.

(b) (1) Subject to paragraph (2), a product or packaging that displays a chasing arrows symbol, a chasing arrows symbol surrounding a resin identification code, or any other symbol or statement indicating the product or packaging is recyclable, or directing the consumer to recycle the product or packaging, is deemed to be a deceptive or misleading claim unless the department has determined the product or packaging is of a material type and form that is determined to be recyclable pursuant to subdivision (d).

(2) Paragraph (1) applies to any product or packaging that is manufactured 18 months or more after the date the list of approved material types and forms is published pursuant to subdivision (d).

(3) A resin identification code placed on a rigid plastic bottle or a rigid plastic container pursuant to Section 18015 shall not constitute a symbol or statement indicating the product or packaging is recyclable or a direction to a consumer to recycle the product or packaging.

(4) Subject to paragraph (2), for products or packaging not determined to be recyclable pursuant to subdivision (d), all of the following apply:
(A) Displaying a chasing arrows symbol or any other statement indicating the product is recyclable directly on the product shall be deemed to be deceptive or misleading.
(B) A chasing arrows symbol or statement indicating recyclability may be displayed on packaging that has been determined to be recyclable pursuant to subdivision (d) if a statement including the warning “DO NOT RECYCLE” is included on the product or packaging that makes clear which other components of the product or packaging are not recyclable.
(C) Displaying a chasing arrows symbol or any other statement indicating recyclability on packaging containing a consumable product shall, for purposes of this section, be deemed to refer only to the packaging. For purposes of this subparagraph, “consumable product” means a commodity that is intended to be used and not disposed of.

(1) A person using the chasing arrows symbol in combination with a clearly visible, thick line placed at a 45-degree angle over the chasing arrows symbol to convey that an item is not recyclable, along with clear guidance to consumers not to recycle the product.

(2) A consumer good that is required by any federal or California law or regulation to display a chasing arrows symbol, including, but not limited to, Section 103(b)(1) of the federal Mercury-Containing and Rechargeable Battery Management Act (42 U.S.C. Sec. 14322(b)(1)) and Section 25215.65 of the Health and Safety Code.

(d) (1) (A) On or before January 1, 2023, the department shall update the regulations developed pursuant Section 42370.2 to include the types and forms of plastic products and packaging for which a claim of recyclability, including through the use of a chasing arrows symbol, may be made.

(B) The department shall, in updating the regulations pursuant to subparagraph (A), evaluate material types and forms that are accepted for recycling by a recycling service provider servicing a jurisdiction with greater than 1,000,000 residents.

(2) The department shall, concurrent with updating the regulations described in subparagraph (A) of paragraph (1), develop a list of material types and forms that are determined to be recyclable based on the criteria listed in subdivision (e). The department shall publish the list of material types and forms on its internet website within 90 days of approval of the updated regulations by the Office of Administrative Law.

(e) For the purpose of determining which material types and forms are recyclable, the director shall consider, at a minimum, all of the following criteria:

(1) Whether the material type and form is eligible to be labeled as “recyclable” in accordance with the uniform standards contained in Article 7 (commencing with Section 17580) of Chapter 1 of Part 3 of Division 7 of the Business and Professions Code.

(2) Whether the material type and form is regularly collected, separated, and cleansed for recycling by recycling service providers.

(3) Whether the material type and form is regularly sorted and aggregated into defined streams for recycling processes.

(4) Whether the material type and form is regularly processed and reclaimed or recycled with commercial recycling processes.

(5) Whether the material type and form regularly becomes feedstock that is used in the production of new products.

(6) Whether the material type and form is recycled in sufficient quantity, and is of sufficient quality, to maintain a market value.

(f) (1) On or before January 1, 2027, and every five years thereafter, the department shall evaluate the list described in paragraph (2) of subdivision (d) and may amend the list to remove or add a material type and form based on whether the material meets the criteria in subdivision (e) at the time of evaluation. The department shall post any updates to the list on its internet website.

(2) If a material type or form no longer meets the criteria in subdivision (e) and is removed from the list described in paragraph (2) of subdivision (d), a person shall not offer for sale, sell, distribute, or import into the state any product or packaging manufactured 18 months after the date the updated list is published pursuant to paragraph (1) if the product or packaging displays a chasing arrows symbol, a chasing arrows symbol surrounding a resin identification code, or any other symbol or statement indicating the product or packaging is recyclable, or directing the consumer to recycle the product or packaging.

(g) (1) A producer, or group of producers, that seeks to have a material type and form that does not meet the criteria in subdivision (e) included on the list described in paragraph (2) of subdivision (d) shall submit a plan to the department detailing how and by what date the product type and form will meet the criteria.

(2) (A) Within 90 days of submission of a plan by a producer, or group of producers, pursuant to paragraph (1), the department shall review the plan and determine if the material type and form will meet the criteria in subdivision (e) by the date prescribed in the plan if the plan is implemented.

(B) If the department determines the material type and form will meet the criteria in subdivision (e) by the date included in the plan, the department shall approve the plan and, within 30 days of the department’s determination, include the material type and form on the list described in paragraph (2) of subdivision (d).

(C) If the department rejects the plan, the department shall provide a written response to the producer, or group of producers, clearly stating the reason for rejecting the plan. The department shall provide the producer, or group of producers, with an opportunity to submit a revised plan within 90 days of the date of the department’s written response. The department shall review the revised plan within 90 days of submission to the department.

(3) The department may offer revisions to the plan if necessary, including requiring that the material type and form meet the criteria in subdivision (e) in a more timely manner.

(4) The department may require the producer, or group of producers, that submitted a plan pursuant to paragraph (1) to submit annual reports detailing the progress made toward implementing the plan. If the department determines the producer, or group of producers, is not implementing the plan or that progress is not sufficient to ensure the product type and form can meet the criteria in subdivision (e) by the date included in the plan, the department may do either of the following:

(A) Remove the material type and form from the list described in paragraph (2) of subdivision (d) within 180 days of the department’s determination.

(B) Allow the producer, or group of producers, to update and submit a revised plan. The department shall review the revised plan within 90 days of submission to the department.

(h) Development of, publication of, and updates made by the department to the list described in paragraph (2) of subdivision (d) pursuant to this section are exempt from Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.

(i) For purposes of this section, “chasing arrows symbol” has the meaning set forth in subdivision (f) of Section 17580 of the Business and Professions Code.

SEC. 6.

No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.