The Future of Ecolabeling for Products and Packaging Sold Into California: New Definitions Coming Soon

Is your product “recyclable”?

Sometime after 2024 after CalRecycle defines the terms, a product sold in California with any recycling symbol — such as the chasing-arrow symbol or the word “recyclable” — will be deemed deceptive or misleading unless it is (1) recyclable under the new state rules and (2) “is of a material type and form that routinely becomes feedstock” and is recycled into the production of new products or packaging. SB 343, to amend the law at Cal. Pub. Res. Code § 42355.51(b)(1).

Product manufacturers will need to improve their recordkeeping if they want to make any kind of environmental claim in advertising, marketing, or labeling, whether claiming a product is not harmful to the environment or is beneficial to the environment. This must include substantiation that the product conforms with applicable Federal Trade Commission Guidelines for Environmental Marketing Claims. A failure to maintain this corroborating documentation will be deemed a misdemeanor. More broadly, existing law dictates that any “untruthful, deceptive, or misleading environmental marketing claim, whether explicit or implied,” is a misdemeanor. The new law would expand the scope of this existing crime and prohibit the sale, distribution, or importing into California of any product or packaging with a deceptive or misleading claim about recyclability.

Existing law already requires rigid plastic bottles and containers sold in California to be labeled with codes indicating the resin used to produce the products. Under this new law, that resin identification code cannot be placed inside the recycling chasing-arrows symbol unless the product meets new statewide recyclability requirements.

This new law will not apply to accurate instructions to consumers on how to properly dispose of or handle a product subject to certain programs once it is no longer useful or directions to a consumer to compost or dispose of products through organics recycling programs. SB 343 will amend Sections 17580 and 17580.5 of the Business and Professions Code and Sections 18015, 42355.5, and 42355.5 of the Public Resources Code.

Is your product “compostable” or “biodegradable”?

Sometime after January 1, 2026, if you are selling products, packaging, packaging components, film products, or food or beverage containers into California, you will be prohibited from selling a product labeled “compostable” unless the product meets certain specified certifications, and you will be prohibited from selling a product labeled “biodegradable,” “degradable,” or “decomposable” unless the products meet specified standards for environmental marketing plans. Fiber products that do not incorporate any plastics or polymers are exempt from compliance with the specification requirements. AB 1201, to amend the law at Cal. Pub. Res. Code § 42356.1(d).

CalRecycle is required to make a specified determination and set criteria for what products are compostable and biodegradable by January 1, 2024, and adopt regulations based on that determination by January 1, 2026. AB 1201 will amend Sections 42356, 42356.1, and 42357 of the Public Resources Code.

Are you selling children’s products containing PFAS into California?

Starting July 1, 2023, there will be a California prohibition on sales and distribution of any new juvenile product that contains regulated PFAS substances. Manufacturers will be required to use the least toxic alternative when replacing PFAS substances in a juvenile product — although the bill does not indicate what process or criteria to use in making this determination of “least toxic alternative.” AB 652, to amend the law at Cal. Health & Safety Code § 108947.A juvenile product is defined as a product “designed for use by infants and children under 12,” including cribs, bedding, and car seats. The law does not apply to electronic products, medical devices, internal components that do not come into contact with a child’s skin or mouth during foreseeable product use, or an adult mattress. The law also does not apply to previously owned products.

The prohibition on use of PFAS substances means either (1) PFAS intentionally added by a manufacturer to a product that have a functional or technical effect in the product or (2) the presence of PFAS in a product or component at or above 100 parts per million, as measured in total organic fluorine.

AB 652 adds a new Chapter 12.5, commencing with Section 108945, to Part 3 of Division 104 of the Health and Safety Code.

Are you selling food packaging or cookware into California with PFAS?

Starting January 1, 2023, California will prohibit distribution and sales of any food packaging containing regulated PFAS substances. AB 1200, to amend the law at Cal. Health & Safety Code § 10900(b). Food packaging is defined as a “nondurable package” or component composed substantially of paper, paperboard, or other plant fibers. This includes food or beverage containers, takeout containers, utensils, straws, and disposable plates, bowls, or trays. Similar to the law governing children’s products, this law will use the same PFAS substances definition as AB 652 and require manufacturers to use the least toxic alternative when replacing regulated PFAS substances in food packaging. AB 1200, to amend the law at Cal. Health & Safety Code § 10900(c).

Starting January 1, 2023, cookware manufacturers will be required to post on the internet a list of chemicals in the cookware that are present on a designated list, which are identified as candidate chemicals that exhibit a hazard trait or an environmental or toxicological endpoint under criteria adopted by the Department of Toxic Substances Control. This list contains over 3,000 chemicals.

Starting January 1, 2024, California will require a manufacturer of cookware, containing at least one intentionally added chemical present on the designated list in either the product’s handle or surface that comes into contact with food or beverage, to list those chemicals on the product label in English and Spanish and tell consumers how they can obtain more information about the chemicals in the cookware.

The law further prohibits manufacturers from making claims on cookware packaging or on the internet that the product is free of any specific chemical unless the product is free of all chemicals within that chemical group or class identified on the designated list. Cookware that fails to comply with these requirements is prohibited from being sold or distributed in California.

AB 1200 adds a new Chapter 15, commencing with Section 109000, to Part 3 of Division 104 of the Health and Safety Code.

Business affected by these new laws can monitor the development of these new rules and definitional criteria at the calrecycle.ca.gov website. If businesses would like to shape the criteria that are adopted for many of these definitions and regulations, they may participate in the rulemaking proceedings.