As the world contends with the ongoing COVID-19 pandemic, activists are sounding the alarm over another pandemic: the plastic pandemic. Environmentalist groups have been warning Americans about our overconsumption of plastic for years, but now states are taking notice and acting. California and Washington state recently enacted legislation establishing a tiered system designed to increase the amount of postconsumer recycled plastic (PCR) content required for sale. PCR is plastic that has completed its life cycle and has been reprocessed into a new product.
California’s AB 793 sets out a schedule for beverage manufacturers to meet. From Jan. 1, 2022, to Dec. 31, 2024, plastic bottles sold in California must contain no less than 15% PCR. From Jan. 1, 2025, to Dec. 31, 2029, plastic bottles sold in California must contain no less than 25% PCR. And by Jan. 1, 2030, plastic beverage containers sold in the state of California must contain no less than 50% PCR. Producers of plastic bottles that do not meet the standard are subject to a penalty. The penalty is decided through an equation: the total pounds of plastic used multiplied by the relevant minimum PCR percentage, less the pounds of PCR used multiplied by 20 cents.
The Washington statute is more far-reaching, as it includes beverage bottles, trash bags and household cleaning products. For bottles, the tiered system is in effect from Jan. 1, 2023, through Dec. 31, 2025, and requires 15% PCR by weight. From Jan. 1, 2026, through Dec. 31, 2030, beverage containers must contain no less than 25% PCR by weight. And then, after Jan. 1, 2031, beverage containers must contain no less than 50% PCR by weight. Manufacturers that violate this law can face annual fines equal to total pounds of plastic used multiplied by the minimum PCR target percentage, minus the total pounds of plastic used multiplied by the PCR percentage used, multiplied by 20 cents.
Maine’s governor signed into law LD 1541 on Tuesday July, 13th. This act seeks to improve recycling efforts and save taxpayer money by shifting the economic burden to the packaging producer. Under this extended producer responsibility (EPR) program, the producer must track the type and amount of packaging sold in Maine then pay an annual fee covering the processing fees of their packaging. This recycling scheme has been used in Europe and Canada for several years and has been effective at lowering the amount of packaging in landfills.
The Federal Trade Commission (FTC) announced its 10-year regulatory review schedule this month. The Guides for the Use of Environmental Marketing Claims (Green Guides) are set to be reviewed and revamped in 2022. The Green Guides help marketers ensure their environmental claims are not unfair or deceptive. With renewed interest in environmental claims, and states taking up the fight, the FTC may seek to further strengthen its green position in the 2022 updates. While not legally enforceable, the Green Guides serve as a point of reference for the FTC’s thinking regarding environmental claims and how it will use its Section 5 authority to curtail what it believes to be unfair and deceptive practices.
Activists have been taking the fight to the courtroom as well, with several environmental groups initiating class action lawsuits against brands for their environmental claims. Green groups are beginning to take note of the FTC’s actions and seek to curtail “greenwashing” through suits for deceptive and misleading business practices. Businesses should exercise caution when touting their environmental and sustainability benefits to ensure that there is no potential liability for deception. Advertisements emphasizing that a product is “100% recyclable” or “green” may be considered deceptive if there is not a robust and effective recycling program in the community in which the product is sold. Other states may follow in the footsteps of California, Washington, and Maine, and activist organizations will continue to hold companies’ feet to the flame with suits over sustainability claims.
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