Hunton Retail Law Resource

California’s tough plastic-labeling enforcement is about to get a little stricter.

In late 2021, the California Statewide Commission on Recycling Markets and Curbside Recycling asked the state’s Attorney General, Rob Bonta, and the California Department of Resources Recycling and Recovery to crack down on inappropriate use of recycling symbols on plastic bags, including the “chasing arrows” logo and the words “recycle” and “recyclable.” According to the Commission, confused California consumers place these mislabeled bags out for curbside collection, which forces recycling companies to spend time pulling these soft plastics out of the waste stream or fixing jammed machines.

As it stands, California’s Proposition 67 prohibits single-use plastic bags, with one exception: retailers may sell plastic bags for 10 cents, as long as these bags are capable of recycling in the state. The Commission’s letter alleges that current state recycling programs cannot handle the types of bags some retailers are using, and is requesting shored-up enforcement. The Commission also asked enforcers to look into whether retailers are deceiving consumers by telling them that their bags and plastic films can be returned to participating stores for recycling—and then failing to recycle returned material.

Enforcement in the state on this issue is already robust. Over the past few years, California enforcers released a barrage of settlements with online and brick-and-mortar retailers over the use of terms like “biodegradable” for plastic products. Investigations into plastic labeling will only increase in the future, owing both to the Commission’s letter and new environmental legislation set to take effect in a few years that would forbid the use of the word “recyclable” or the chasing arrows symbol unless the labeled product is, in reality, possible to recycle in California.

Retailers should be prepared for government inquiries into how their plastic bags are labeled, and where and how these items can be recycled. Hunton Andrews Kurth LLP’s retail and consumer products team has extensive experience working and negotiating with California regulators and can help retailers prepare for these investigations. Hunton will continue to monitor developments in this area.