Is the recycling symbol free speech? A judge just ruled it could be.
Grist · LC · trust 47/100
A pioneering California law meant to sharply limit use of the familiar “chasing arrows” recycling symbol has been blocked by a federal judge who said it probably violates the First Amendment.
In a preliminary injunction issued last month, U.S. District Judge William Hayes halted enforcement of SB 343 after food, packaging and retail groups sued , finding that key provisions were “unconstitutionally vague” and likely infringed protected commercial speech. Enforcement of the law, passed in 2021 , was expected to start this fall.
The decision is a blow to environmental advocates, who had hoped to remove the familiar symbol from a huge array of plastic products, in line with a statewide study showing that only a fraction are widely collected and actually recycled. SB 343 said only goods and packaging accepted by recycling programs serving at least 60 percent of Californians and then actually sorted for recycling — not collected and thrown away — could bear the chasing arrows.
Hayes’ constitutional reasoning surprised supporters of SB 343 because similar arguments against environmental marketing regulations have historically struggled in court.
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“The First Amendment protects free expression, not a corporation’s right to commit consumer fraud,” said Nick Lapis, director of advocacy for the nonprofit Californians Against Waste. “We see this exact playbook every time the plastics industry is asked to stop misleading the public — they suddenly hide behind the Constitution.”
In his decision, Hayes applied a standard four-part test to determine whether SB 343 would unduly restrict companies’ speech rights. The law passed the first two tests handily, as it regulates “potentially misleading” speech and was intended to serve California’s legitimate interests in reducing consumer confusion and improving recycling rates.
The next tests are where the law ran into trouble. Hayes, siding with the industry trade groups, argued that the legislation would not advance those “legitimate interests.” Rather than encouraging companies to redesign their products and packaging to comply with California’s real-world recyclability criteria, he said the law would prompt them to remove the recycling symbol altogether. Products recycled at a rate below the 60 percent threshold that the law requires would no longer make it into recycling bins, which could in theory leave more of them bound for the landfill.
Hayes said a less stringent regulation could have better advanced California’s goals. For instance, the state could have passed a law requiring more descriptive qualifiers alongside the recycling symbol. He offered a hypothetical example of a label explaining that an item is “accepted by recyclers in the greater Los Angeles area but nowhere else in California.” Such a label would provide consumers with more and better information, he argued, but would not be allowed under SB 343.
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Heidi Sanborn, executive director of the nonprofit National Stewardship Action Council, said the judge’s reasoning reflected a fundamental misunderstanding of the problems facing California recycling systems. People are throwing too much stuff into their blue bins, she said. In addition to not actually being recyclable, much of this refuse — including plastic bags and other plastic films — can gum up sorting machines, causing operational delays and creating safety risks.
“People are wish-cycling, they’re so desperate to recycle,” Sanborn told Grist. “We have to pull all this [contamination] out, which is very labor-intensive, and then everybody wants to know why their bills go up.”
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