Western Growers and a broad coalition of agricultural, food, packaging and business associations appeared last week before U.S. District Judge William Q. Hayes in the Southern District of California on plaintiffs’ motion for preliminary injunction in California League of Food Producers, et al. v. Bonta. The lawsuit challenges California’s SB 343, the “Truth in Recycling” law, which restricts the use of recyclability claims and the chasing-arrows symbol unless packaging satisfies California’s recyclability criteria.
At the hearing, Judge Hayes closely questioned the State’s theory that SB 343 will improve recycling by removing recyclability labels from products that do not satisfy the statute’s 60/60 threshold. In a central exchange, the Court asked whether packaging that is currently recycled at a 55 percent rate would lose its recyclability label under SB 343 and, if consumers follow the label, would then go to landfill rather than recycling. The Deputy Attorney General acknowledged that products below the 60/60 threshold could no longer bear the recycling symbol and that, “if people were fully following what’s on the package,” those items would go to landfill. She further conceded that “this law likely would result in a lot fewer things going to the recycling bin” and that it is currently unclear whether SB 343 will increase or decrease landfill volumes.
Judge Hayes also focused on whether the State had evidence that the law would materially advance its asserted interests. When asked whether the State already possessed the evidence needed to support the law, the Deputy Attorney General acknowledged that the Attorney General’s office did not have “all of the evidence to support the law” and said the State would likely rely on experts to explain the foundation for the Legislature’s determinations. This exchange is significant because, under the First Amendment’s commercial-speech framework, the State bears the burden of showing that the challenged restriction directly and materially advances a substantial governmental interest.
The Court also pressed the State on vagueness concerns. Judge Hayes questioned whether terms such as “routinely becomes feedstock,” “prevent recyclability,” and “designed to ensure recyclability” give manufacturers adequate notice of what is required. In discussing the Association of Plastic Recyclers design guide, the Court asked about products that are “grudgingly tolerated by recyclers.” The Deputy Attorney General acknowledged that, in some situations, the law “could be vague,” though the State maintained that the challenged provisions are not vague enough to justify an injunction.
Several concessions may be particularly important to the preliminary injunction analysis. The Deputy Attorney General agreed that, for purposes of the preliminary injunction motion, the State’s position on the Basel Convention provision could be read as a concession that the State lacked sufficient information to enforce that provision. She also acknowledged that private enforcers would not be bound by the Attorney General’s current enforcement position. In another exchange, when Judge Hayes asked how manufacturers would know whether materials that satisfy the 60/60 threshold nevertheless fail to “routinely” become feedstock because downstream markets have changed, the Deputy Attorney General responded: “That’s correct. It would be hard for them to know that.”
Plaintiffs argued that SB 343 will chill truthful recyclability speech, cause companies to remove useful recycling instructions from packaging nationwide, and ultimately divert more materials to landfills. Plaintiffs also emphasized that qualified claims permitted under the Federal Trade Commission’s Green Guides, such as “check locally” or “not recyclable in all areas,” are less restrictive alternatives that would provide consumers with more useful information while avoiding misleading claims.
Judge Hayes did not rule from the bench and indicated that he will issue a written decision. Western Growers will continue to monitor the case closely and keep members informed.
Related SB 54 Litigation Filed by Environmental Groups
In a separate action, Natural Resources Defense Council, Oceana and Californians Against Waste Foundation filed suit in San Francisco County Superior Court against the California Department of Resources Recycling and Recovery, known as CalRecycle, challenging portions of the final SB 54 regulations.
The lawsuit challenges two provisions of the final regulations. First, the groups object to the advanced recycling provision which allows the Producer Responsibility Organization to identify certain non-mechanical recycling processes that were not in use in California before January 1, 2023. Those technologies may be considered “recycling” if they satisfy specified requirements, including limits on hazardous waste generation.
Significant for the fresh produce industry, the lawsuit challenges the food and agricultural commodity exclusion mechanism. That provision allows a producer to exclude specific packaging or packaging components from SB 54 regulation if the producer can show that it is not reasonably possible for the packaging to comply with both SB 54 and applicable USDA or FDA regulations.
Together, the SB 343 and SB 54 lawsuits underscore the continuing legal uncertainty surrounding California’s rapidly evolving packaging, recyclability-labeling and extended producer responsibility requirements. Western Growers members are encouraged to refer to Western Growers’ SB 54 Resources and Updates page for additional compliance resources and ongoing updates.