A groundbreaking California law designed to drastically reduce the use of the recognizable “chasing arrows” recycling symbol has been halted by a federal judge, who indicated it likely breaches the First Amendment.
Earlier this month, U.S. District Judge William Hayes issued a preliminary injunction against enforcing SB 343 after food, packaging, and retail groups initiated a lawsuit. He found that critical aspects of the law were “unconstitutionally vague” and could infringe on commercial speech protected by the First Amendment. The law, passed in 2021, was set to be enforced this fall.
This ruling is a setback for environmental advocates who aimed to eliminate the symbol from numerous plastic products, following a statewide study revealing that only a small portion is commonly collected and actually recycled. SB 343 stipulated that only products and packaging accepted by recycling programs serving at least 60% of Californians and subsequently sorted for recycling — not collected and discarded — could display the chasing arrows.
Hayes’ constitutional assessment took supporters of SB 343 by surprise, as similar arguments against environmental marketing regulations have typically faced challenges in court.
“The First Amendment protects free expression, not a corporation’s right to commit consumer fraud,” stated Nick Lapis, director of advocacy for the nonprofit Californians Against Waste. “This is a recurring tactic whenever the plastics industry is asked to stop misleading the public — they suddenly invoke the Constitution.”
In his ruling, Hayes utilized a standard four-part test to evaluate whether SB 343 would excessively limit companies’ speech rights. The law easily passed the first two tests, as it addresses “potentially misleading” speech and was intended to reduce consumer confusion and boost recycling rates in California.
However, the law encountered issues with the subsequent tests. Hayes, agreeing with industry trade groups, argued that the legislation would not promote those “legitimate interests.” Instead of motivating companies to redesign their products and packaging to meet California’s practical recyclability standards, he said the law would encourage them to remove the recycling symbol altogether. Products recycled at a rate below the 60% threshold required by the law would no longer reach recycling bins, potentially leading more of them to end up in landfills.
Hayes suggested that a less restrictive regulation could more effectively advance California’s objectives. For example, the state could have enacted a law requiring more descriptive qualifiers alongside the recycling symbol. He proposed a hypothetical label stating 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 accurate information, he argued, but would not be permissible under SB 343.
Heidi Sanborn, executive director of the nonprofit National Stewardship Action Council, remarked that the judge’s reasoning demonstrated a fundamental misunderstanding of the challenges facing California’s recycling systems. She noted that people are placing too many items into their blue bins. Besides not being recyclable, much of this waste — including plastic bags and other plastic films — can jam sorting machines, causing operational delays and posing safety risks.
“People are wish-cycling, they’re so eager to recycle,” Sanborn told Grist. “We have to extract all this [contamination], which is very labor-intensive, and then everyone wonders why their bills increase.”
Industry groups welcomed the injunction, claiming it would prevent California from “censoring truthful information on packaging.”
Scott Hochberg, general counsel and litigation director for the nonprofit Earth Island Institute, noted that he has observed free speech challenges to environmental rules many times before. Large polluters have frequently invoked the First Amendment to resist regulations requiring them to disclose information — such as their greenhouse gas emissions — or to soften claims about their sustainability.
“What’s relatively new and concerning is when these arguments succeed and states are blocked from implementing common-sense initiatives to protect their residents,” he said.
A lawsuit Hochberg’s organization is pursuing against Coca-Cola reflects the same debate. It alleges the company portrays itself as a “sustainable and environmentally friendly company” despite its significant contribution to plastic pollution. Coca-Cola contended that statements about its sustainability efforts — including plastics recycling — were protected political speech rather than commercial advertising. A federal judge rejected that argument in 2024.
The companies suing California did not make the same distinction; their lawsuit is more akin to one filed in 1992 that aimed to block a California law restricting the use of terms like “biodegradable,” “ozone-friendly,” and “recyclable.” A judge upheld the law, ruling that it would not suppress free speech because corporations could still use a restricted word or phrase as long as they included qualifiers explaining how, where, or under what conditions it applied.
The injunction against SB 343 leaves California with limited options. Hayes’ ruling indicates the state faces a challenging path if the case goes to trial. Lawmakers could amend the law to address some of the judge’s concerns, though this might be unlikely given the political climate. California could also appeal the injunction, but the lower court would still need to decide the case on its merits.
Earth Island Institute and Californians Against Waste announced on July 27 that they are joining California as defendants. Hochberg expressed hope to provide the court with more information “about how the recycling system actually works.” Losing the lawsuit will complicate efforts for other states to pursue similar labeling regulations, he said.
It could also jeopardize California’s nation-leading extended producer responsibility law, which shifts the responsibility for collecting, recycling, and reducing plastic packaging from taxpayers and local governments to the companies that produce it. This law relies on the same definition of recycling and is currently being challenged by a separate lawsuit.
Regardless of what happens next, Sanborn stated she’s willing to collaborate with the industry to develop other solutions — including legislation to clarify labeling rules at the national level. “We can and should work together to solve this,” she said. “But you should not have the right to lie to people.”
