California’s Department of Resources Recycling and Recovery (CalRecycle) recently released a preliminary report analyzing data related to the recyclability of certain materials in California.  The report, issued in accordance with CalRecycle’s obligations under California Senate Bill 343 (SB 343), is intended to help the public determine whether businesses may legally claim their products and packaging are recyclable in California, including through the inclusion of the common “chasing arrows” symbol.

Enacted in 2021, SB 343 provides that products or packaging may not include messaging “indicating that the product or packaging is recyclable, or otherwise directing the consumer to recycle the product or packaging” unless it satisfies the statutory definition of “recyclable.”  Cal. Pub. Res. Code § 42355.51(b)(1).  To be considered recyclable, items must be collected by recycling programs that serve at least 60% of the state’s population and sorted by large volume transfer or processing facilities (LVTPs) that serve at least 60% of statewide recycling programs.  Companies that make noncompliant recyclable claims may face liability under the state’s consumer protection statutes. It is also important to note that compliance with the Federal Trade Commission’s Green Guides may be insufficient to assure compliance with these new California requirements.

The preliminary report analyzes whether certain categories of materials—including subcategories of metal, plastic, fiber, and glass—are collected by local recycling programs and whether they are sorted by a sample of the state’s LVTPs.  The report also estimates the percentages of the state’s population served by the analyzed programs and facilities.  The results are broken down by type of material to aid the public in determining whether specific items may be advertised as “recyclable” in California.  Covington’s more detailed analysis of the report’s findings and implications is available via email here.

CalRecycle will present its preliminary findings and solicit feedback on February 13, 2024 during a public workshop.  The workshop is live in Sacramento and may also be attended via webcast.  Additionally, interested parties may submit written comments until February 29, 2024.  CalRecycle plans to finalize its findings within 60 days of the public workshop.

Photo of Laura Kim Laura Kim

Laura Kim has a proven track record of successfully resolving clients’ most important consumer protection matters before the FTC, State AGs, and the NAD. She is well-known for her insider knowledge of the FTC as well as her practical approach to accomplishing her…

Laura Kim has a proven track record of successfully resolving clients’ most important consumer protection matters before the FTC, State AGs, and the NAD. She is well-known for her insider knowledge of the FTC as well as her practical approach to accomplishing her clients’ objectives.

As chair of Covington’s Advertising & Consumer Protection Investigations practice group, Laura represents corporate and individual clients in investigations before the FTC and State Attorneys General. She also provides pragmatic compliance advice on a wide range of consumer protection issues, including substantiating claims involving generative artificial intelligence, environmental benefits, and “Made in USA.” She counsels brands on emerging issues involving influencers, consumer reviews, AI-generated content, and subscription autorenewals. Laura regularly represents both challengers and advertisers before the NAD, achieving favorable outcomes in matters involving artificial intelligence, influencers, and claim substantiation.

During her twelve-year tenure at the FTC, Laura served as Assistant Director in two divisions of the Bureau of Consumer Protection, Attorney Advisor to Chairman William E. Kovacic, and Chief of Staff to Bureau Director Jessica Rich. She oversaw major rulemakings—including the Green Guides and the Telemarketing Sales Rule—and supervised dozens of investigations and enforcement actions. As Assistant Director in the Division of Enforcement, Laura also supervised compliance monitoring and enforcement proceedings for companies under federal court or Commission order.

Photo of Thomas Brugato Thomas Brugato

Thomas Brugato is a partner in the firm’s Washington, DC office. His practice focuses on environmental matters, as well as civil and administrative litigation. He has experience advising clients on a wide variety of environmental issues, including under the Clean Air Act, Clean…

Thomas Brugato is a partner in the firm’s Washington, DC office. His practice focuses on environmental matters, as well as civil and administrative litigation. He has experience advising clients on a wide variety of environmental issues, including under the Clean Air Act, Clean Water Act, RCRA, CERCLA, EPCRA, TSCA, FIFRA, the Endangered Species Act, the Occupational Safety and Health Act, and EPA’s Renewable Fuel Standard program.

Thomas has extensive experience in representing companies on FIFRA matters relating to a wide range of products—such as antimicrobials, devices, treated articles, and traditional pesticides—including in EPA enforcement actions. He also has particular expertise in advising companies on a wide range of Administrative Procedure Act (APA) issues, including in litigation involving agencies in federal court. Finally, Thomas has significant experience advising clients on Indian law related issues, particularly relating to the Indian Gaming Regulatory Act and tribal sovereign immunity.

Photo of Lindsay Brewer Lindsay Brewer

Lindsay advises clients on environmental, human rights, product safety, and public policy matters.

She counsels clients seeking to set sustainability goals; track their progress on environmental, social, and governance topics; and communicate their achievements to external stakeholders in a manner that mitigates legal…

Lindsay advises clients on environmental, human rights, product safety, and public policy matters.

She counsels clients seeking to set sustainability goals; track their progress on environmental, social, and governance topics; and communicate their achievements to external stakeholders in a manner that mitigates legal risk. She also advises clients seeking to engage with regulators and policymakers on environmental policy. Lindsay has extensive experience advising clients on making environmental disclosures and public marketing claims related to their products and services, including under the FTC’s Green Guides and state consumer protection laws.

Lindsay’s legal and regulatory advice spans a range of topics, including climate, air, water, human rights, environmental justice, and product safety and stewardship. She has experience with a wide range of environmental and safety regimes, including the Federal Trade Commission Act, the Clean Air Act, the Consumer Product Safety Act, the Federal Motor Vehicle Safety Standards, and the Occupational Safety and Health Act. Lindsay works with companies of various sizes and across multiple sectors, including technology, energy, financial services, and consumer products.

Photo of Julia Barrero Julia Barrero

Julia Barrero is an associate in the firm’s San Francisco office and a member of the Class Action Practice Group. She represents clients in pre-litigation and litigation matters involving data privacy and consumer protection claims, including alleged wiretapping, breach of contract, false advertising…

Julia Barrero is an associate in the firm’s San Francisco office and a member of the Class Action Practice Group. She represents clients in pre-litigation and litigation matters involving data privacy and consumer protection claims, including alleged wiretapping, breach of contract, false advertising, and tort claims. Her experience spans key stages of litigation, including motions to dismiss, discovery, summary judgment, appeals at the D.C. Circuit, and briefs before the U.S. Supreme Court.

In addition, Julia advises clients on environmental marketing issues involving sustainability, recycling, packaging, climate disclosures, and carbon crediting, including compliance with California law and the FTC’s Green Guides. This experience complements her class action practice, particularly in matters involving greenwashing, sustainability claims, and other environmental consumer protection theories.

Before practicing law, Julia spent six years working at startups and technology companies in San Francisco, where she helped launch new products and features.
Julia also maintains an active pro bono practice, including drafting amicus briefs on behalf of coalition groups in complex statutory interpretation matters before the U.S. Supreme Court.

Photo of Jessica Ke Jessica Ke

Jessica Ke is an associate in the firm’s Privacy and Cybersecurity and Advertising and Consumer Protection Investigations practice groups. Jessica advises clients on a wide range of regulatory and compliance issues, including compliance with state comprehensive privacy laws, advertising substantiation issues, and participation…

Jessica Ke is an associate in the firm’s Privacy and Cybersecurity and Advertising and Consumer Protection Investigations practice groups. Jessica advises clients on a wide range of regulatory and compliance issues, including compliance with state comprehensive privacy laws, advertising substantiation issues, and participation in the regulatory process. Jessica also maintains an active pro bono practice.