Back in April, I wrote about a legal challenge to California’s SB 343. This challenge has now resulted in a preliminary injunction, meaning SB 343 cannot be enforced pending the outcome of the lawsuit. SB 343 regulates what recycling claims companies can make in California and notably bans the “chasing arrow” recycling symbol for most products. The law was set to take effect in October of this year. However, the legal challenge now puts enforcement on ice. A recent ArentFox memo discusses the injunction and offers the following takeaways for companies:
- The ruling signals significant vulnerabilities in SB 343. The court’s ruling that plaintiffs are likely to succeed on both their vagueness and First Amendment claims suggests substantial obstacles to the law surviving judicial review in its current form.
- The scope of the injunction is uncertain. The preliminary injunction applies to the California Attorney General and “all those in privity or acting in concert” with him. It is not clear from the ruling whether the injunction protects all businesses or only members of the plaintiff trade associations. Additionally, it is uncertain whether the court did or can enjoin enforcement of SB 343 by local district attorneys or private plaintiffs who are not parties to the lawsuit.
- The regulatory landscape remains uncertain. Businesses that had begun modifying packaging or removing recyclability claims in advance of the October deadline face uncertainty about whether, when, and in what form SB 343’s requirements may ultimately take effect.
- Private litigation exposure outside of SB 343 continues. The preliminary injunction does not affect pending or future private litigation challenging recycling claims (e.g., deceptive or false advertising). CalRecycle’s Material Characterization Study has been cited in recent consumer class action lawsuits in California. Businesses should continue to evaluate their litigation exposure for recyclability claims regardless of the injunction.
Labeling laws in California often have national impacts, as making California-specific labels for products sold nationally is logistically impractical. Unless California appeals the injunction, it is likely to remain in place for the foreseeable future. Litigation like this often takes years to conclude.
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