Skip to main content
Publication

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 word.

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 for 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 are 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.

Table 1. Examples of Enacted and Pending* State Recycling and Environmental Claims Legislation
*Pending legislation marked with an asterisk.

State

Brief Overview

Relevant Date(s)

Recyclability

California
SB 343
 

Restricts recyclability claims by narrowing the universe of products and packaging that are considered “recyclable” in California based on state-driven data to be collected and published by CalRecycle. 

Effective as early as 2024

New York
*S7375/
A7668 
 

 

Requires the NY Dept. of Environment (NYDEP) to promulgate regulations defining the type and forms of plastic products and packaging for which a “recyclable” claim may be made based on considerations, such as whether the material is regularly collected, separated, sorted, and processed and reclaimed or recycled within the commercial recycling process. 

Applicable to products or packaging manufactured ≥ 180 days after the list of approved material types and forms is published.

Recycled Content Minimums

California
AB 793
 

Establishes a minimum 15% PCR content requirement for plastic bottles covered by the state container redemption program. The PCR content increases to 25% and 50% in 2025 and 2030, respectively. 

Effective Jan. 1, 2022

Reporting begins March 1, 2024  [21]
 

Washington
SB 5022
 

Requires producers of plastic trash bags, beverage bottles, bottles for household cleaning and personal care products, 187 mL wine containers and dairy milk containers to include specified amounts of PCR in their packaging. Implementation begins in 2023, requiring plastic trash bags and beverage containers to contain 10% and 15% PCR, respectively. 

Producer registration required by April 1, 2022

PCR content requirements begin 2023
 

Connecticut
SB 928
 

Directs the state Department of Energy and Environmental Protection (DEEP) to develop a plan for implementing a minimum recycled content program. 

DEEP recommendations: Dec. 1, 2022

New Jersey
*S2515/ A4676
 

 

 

Would establish incremental recycled content standards for plastic containers, glass containers, paper carryout bags, reusable carryout bags made of plastic film, and plastic trash bags.

PCR content requirements begin 2yrs after enactment

Extended Producer Responsibility

Maine
LD 1541
 

Requires packaging producers to pay into a stewardship organization that will reimburse municipalities for eligible recycling and waste management costs and fund investments and education. Applies to packaging that is intended for long-term storage or protection of a durable product, excluding beverage containers under Maine’s “Bottle Bill” and architectural paint packaging.

Estimated to come into effect in 2026

Oregon
SB 582
 

Requires producers of plastic and non-plastic packaging, printing and writing paper, and food service ware to join and pay into a Producer Responsibility Organization (PRO) that will fund expanded access to recycling services, recycling facility upgrades, and education. A graduated fee schedule will be developed by the PRO, assessing higher fees based on the environmental impacts of the packaging, as assessed by factors such as PCR content, product-to-package ratio, life cycle impacts, and the recycling rate of the material, among others.

Effective Jan. 1, 2022

Program Begins July 2025
 

Massachusetts
*S610 / HD 1553
 

Would require producers of covered materials, as defined by the Department of Environmental Protection in concert with the to-be established producer organization, to pay into a reimbursement fund to cover certain recycled and waste management costs, and achieve specified recycling and post-consumer recycled content rates. If the producer of a covered material does not comply with the requirements of the bill, retailers and distributors will be prohibited from selling, offering for sale, using, or distributing the material.

Implementing regulations must be promulgated within 6 months of enactment 

 

New York
*S1185C
 

Would establish an extended producer responsibility act applicable to producers of certain classes of packaging and containers (e.g., plastics, paper products, and flexible foam and rigid containers). Beyond reimbursement, the program will be used to promote the recycling, reuse, and recovery of covered products through financial incentives.

Producers must have an approved producer responsibility plan within 3 years of enactment 

 

Litigation

While legislative initiatives focus on both recycled content minimums and recyclability claims, recent lawsuits have focused on recyclable claims. For example, plaintiffs in an ongoing class action suit filed several years ago against Keurig Green Mountain, Inc. [22] allege that the brand mislabeled its single-serve plastic coffee pods as “recyclable,” and that qualifiers such as “check locally” were inadequate. The pods are made of polypropylene, one of the more commonly recycled plastics, but plaintiffs allege that the pods are not in fact recyclable at all due to their small size, composition, and a lack of a market to reuse recovered pods. Keurig filed a motion to dismiss in January 2019, [23] but was denied by the court, which rejected the company’s reliance on its “check locally” disclaimer. [24] According to the Northern District of California, if the pods are not recyclable at any municipal recycling facility, as the complaint alleges, despite the qualifier, the claim could be misleading. [25] Failing to obtain dismissal of the case, Keurig is now attempting to settle the class action. [26]

Several more lawsuits challenging plastics recyclability claims have been filed in the past two years. The increase in recyclability claims challenges follows both the Keurig litigation and the release of a 2020 Greenpeace report estimating that only nine percent of plastics are actually recycled. [27] Whether the report’s methodology will survive litigation challenge in specific cases and under particular facts remains to be seen, but plaintiffs’ lawyers have continued to challenge recyclability claims based on the very low general recycling rates cited by the Greenpeace report. 

Indeed, in several recent cases, the crux of the arguments appears to be that no plastic packaging should be advertised as “recyclable” without qualification because the majority of plastic packaging is not actually recycled. [28] At least two of these cases take particular issue with plastic beverage bottles labeled “100% Recyclable,” as plaintiffs note that 100% of plastic bottles are not recycled and “domestic recycling facilities only have the capacity to process approximately 22.5% of the PET and HDPE consumed in the United States.” [29] While rates for specific products made out of these materials may be higher, EPA’s data suggests that recycling rates for both PET and HDPE bottles are just under 30%. Regardless of which numbers are more accurate, the FTC’s standard for an unqualified “recyclable” claim requires evidence that 60% of consumers or communities have access to recycling. Please note that there is a difference between the FTC Green Guides and California’s SB 343 in that the FTC allows flexibility to make recyclable claims for products that don’t reach this level so long as they clarify those limits for consumers, an approach designed to be consistent with commercial free speech rights.

Despite low actual recycling rates for some materials, plaintiffs do face a variety of hurdles in maintaining a lawsuit challenging recyclable claims. For example, a complaint by Greenpeace in the Northern District of California against Walmart was dismissed this year for lack of standing. In granting Walmart’s motion to dismiss, the judge explained that Greenpeace was never misled by Walmart’s recyclability claims and thus failed to plead that it acted in reliance on the truthfulness of Walmart’s representations. [30] The order did not address whether recyclability claims could be made for Walmart’s products, and that issue might still be litigated as Greenpeace filed an amended complaint in October. However, dismissal of Greenpeace’s first complaint for lack of standing does suggest that NGOs may not be proper plaintiffs in these types of cases, including in California, where most of the lawsuits are filed. Similarly, courts have yet to address whether the recyclability claims are material to the consumer’s purchasing decision. 

Nevertheless, the increasing risk of litigation around “recyclable” claims demands careful attention to framing such claims more than ever. While litigation to date has focused on claims for plastics, actual recycling rates vary significantly not only among materials, but also by the types of products made from those materials, as the EPA’s most recent data on recycling rates shows. [31] For example, EPA reports that total paper and paperboard recycling rates in 2018 were 80.9%, corrugated carboard boxes at 96.5% accounted for the bulk of the volume and the other categories were closer to 20.8%, although EPA’s figures may differ from reliable industry sources. [32] Thus, scrutiny of recyclable claims is likely to continue, and not just for plastics.

Looking Forward

We expect that state legislative activity around recycled content and recyclability questions will resume once the 2022 legislative sessions convene. Several states left proposals on the table at the end of the 2021 legislative session. With enactment of bills in California, Maine, Washington, and others, additional states may follow suit. Several states are also beginning to take concrete steps towards developing recycled content or recyclability requirements under existing laws. For instance, the Connecticut Department of Energy and Environmental Protection is charged with developing a plan for implementing a minimum recycled content program by December 1, 2022. Similarly, the Maryland Department of Environment must deliver a set of recommendations on how to improve markets for recyclable materials and products by September 1, 2022. These discussions should provide vehicles for business organizations to discuss industry initiatives to promote new technological solutions to the waste problem, like molecular recycling for plastics. Litigation is also expected to continue, and decisions or settlements in pending cases could influence the landscape for recyclable claims for a range of products and packaging made from paper, glass, metal, plastics, and other materials. 

As we all grapple with how to advance goals of reducing our environmental impact while maintaining the convenience and choices of modern life, it is equally important for stakeholders and policymakers alike to precisely define their goals and consider the role and importance of the materials and products they are proposing to regulate. Without such an assessment it is difficult to see how regulators can craft policy responses that best advance the goals of reducing waste, increasing recycling, and maintaining robust choice of materials and products designed to enhance our daily lives. While it is important for businesses to participate in that process, it is equally important for them to pay special attention to their recycled content and recyclability claims so that consumers get the information they need through robust claims that are fully supported by available data. 


1. Org. for Econ. Co-operation and Dev., The Circular Economy: What, Why, How and Where, pp. 34–59, available at https://www.oecd.org/cfe/regionaldevelopment/Ekins-2019-Circular-Economy-What-Why-How-Where.pdf.
2. See id. at p. 4.
3. See Ellen MacArthur Found., Our vision for a circular economy for plastics, available at https://ellenmacarthurfoundation.org/plastics-vision. 
4. European Comm’n, A New Circular Economy Action Plan for a Cleaner and More Competitive Europe, available at https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1583933814386&uri=COM:2020:98:FIN.
5. Australia Commonwealth Sci. and Indus. Rsch. Org., National Circular Economy Roadmap for Plastics, Glass, Paper, and Tyres (Jan. 2021), available at https://www.csiro.au/en/research/natural-environment/Circular-Economy.
6. U.S. Env’t Prot. Agency, National Recycling Strategy: Part One of a Series on Building a Circular Economy for All (Nov. 2021), available at https://www.epa.gov/system/files/documents/2021-11/final-national-recycling-strategy.pdf.
7. See id. at p. 2.
8. See generally, 42 U.S.C. § 6941–6949a.
9. 16 C.F.R. Part 260.
10. 15 U.S.C. §§ 41, et seq.
11. See generally Closed Loop Partners, Transitioning to a Circular System for Plastics: Assessing Molecular Recycling Technologies in the United States and Canada, available at https://www.closedlooppartners.com/closed-loop-partners-releases-first-of-its-kind-report-evaluating-the-role-of-molecular-recycling-technologies-in-addressing-plastic-waste/ (discussing the role of molecular recycling in addressing plastic waste).
12. See 2021 Wash. Sess. Laws Ch. 313 and 14 Cal. Code Reg. § 17943(q).  See also, Draft Plastic Beverage Container Minimum Content Proposed Regulations (Oct. 27, 2021), available at https://www2.calrecycle.ca.gov/Docs/Web/119811 (proposing to adopt a definition of PCR that includes commercial, industrial and institutional facilities in their role as end users). 
13. See 16 C.F.R. § 260.13, Example 1.
14. 14 Cal. Code Regs. § 17944(a)(1).
15. N.J. S2515/A4676 (2020–2021), available at https://www.njleg.state.nj.us/bills/BillView.asp?BillNumber=S2515.
16. Me. LD 1541, available at http://www.mainelegislature.org/legis/bills/display_ps.asp?ld=1541&PID=1456&snum=130.
17. 2021 Cal. Stat. Ch. 507. 
18Id. at p. 9 (to be codified at Cal. Pub. Res. Code § § 42355.51(d)(5)). 
19. 16 C.F.R. § 260.12, Example 2.
20. See, U.S. Fed. Trade Comm’n, The Green Guides Statement of Basis and Purpose, p. 114, available at https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-issues-revised-green-guides/greenguidesstatement.pdf (discussing how ASTM testing protocols for compostability “reflect ‘optimum [operating] conditions’ and ignore ‘wide variation’ in actual facility operations”); see also Final Order, In the Matter of ECM BioFilms, Inc., Dkt. 9358, File No. 1223118 (Oct. 11, 2015), available at https://www.ftc.gov/system/files/documents/cases/151019ecmorder.pdf (noting that test results from ASTM)
“D5511-12, Standard Test Method for Determining Anaerobic Biodegradation of Plastic Materials under High Solids Anaerobic Digestion Conditions, or any prior version thereof, are not competent and reliable scientific evidence supporting unqualified claims, or claims of outcomes beyond the parameters and results of the actual test performed.”). 
21. Manufacturers of PCR plastic will be required to report the amount of food-grade flake, pellet, sheet, fines, and other forms of PCR sold in the previous calendar year and their capacity to produce “food-grade” material to CalRecycle on an annual basis.
22. Smith v. Keurig Green Mountain, Inc., No. 4:18-cv-06690-HSG (N.D. Cal. 2018).
23. Motion to Dismiss, Smith v. Keurig Green Mountain, Inc., Dkt. 26, No. 4:18-cv-06690-HSG (N.D. Cal. Jan. 29, 2019).
24. Order on Motion to Dismiss, Smith v. Keurig Green Mountain, Inc., Dkt. 50, No. 4:18-cv-06690-HSG (N.D. Cal. June 28, 2019).
25. Id.
26. See Joint Motion to Stay, Smith v. Keurig Green Mountain, Inc., Dkt. 124, No. 4:18-cv-06690-HSG (N.D. Cal. Oct. 26, 2021).
27. Greenpeace, Circular Claims Fall Flat: Comprehensive U.S. Survey of Plastics Recyclability (2020), available at https://www.greenpeace.org/usa/wp-content/uploads/2020/02/Greenpeace-Report-Circular-Claims-Fall-Flat.pdf. 
28. See e.g., Complaint, Earth Island Institute v. Crystal Geyser Water Co. et al, No. 20-cv-01213 (Cal. Super. Ct. Feb. 26, 2020) (noting that “U.S. recycling facilities do not have the capacity to process the sheer volume of plastic waste produced annually, and therefore do not actually recycle much of the items submitted to them by consumers. Consumers do not have reasonable access to recycling facilities that will actually recycle Defendants’ products”).
29. See Complaint, Swartz et al v. The Coca-Cola Co. et al, No. 3:21-cv-04643 (N.D. Cal. June 16, 2021); Complaint, Sierra Club v. The Coca-Cola Co. et al, No. 4:21-cv-04644 (N.D. Cal. June 16, 2021).
30. See Order, Greenpeace, Inc. v. Walmart Inc., No. 21-cv-00754-MMC (N.D. Cal Sept. 20, 2021).
31. See U.S. Env’t Prot. Agency, Table 25, Advancing Sustainable Materials Management: 2018 Tables and Figures, available at https://www.epa.gov/sites/default/files/2021-01/documents/2018_tables_and_figures_dec_2020_
fnl_508.pdf.

32. Id. at p. 39. Please note, however, that EPA used a limited data set, and trade associations for specific paper categories report different rates. For example, the American Forest & Paper Association reported 68.1% of paper consumed in the U.S. in 2018 was recovered for recycling. See Amer. Forest & Paper Assoc., U.S. Paper Recovery for Recycling Rate Reaches Record 68.1 Percent in 2018 (May 8, 2019), available at https://www.afandpa.org/news/2019/us-paper-recovery-recycling-rate-reaches-record-681-percent-2018.