States, EPA want tougher green marketing guides for plastics

State attorneys general and the Environmental Protection Agency are pressing the Federal Trade Commission to regulate plastics environmental claims more tightly, calling some uses of the resin code with chasing arrows "problematic" and requiring more proof of the green bona fides of chemical recycling.

Lawyers for both the Connecticut and California attorneys general, part of a coalition of 15 states, told a May 23 FTC hearing in Washington that the agency should tighten recyclability claims.

Similarly, an EPA official testified in favor of a higher bar for such marketing, such as requiring that plastics and other materials have strong recycling end markets to make green claims.

The FTC held the fact-finding hearing as part of a review of its own environmental marketing rules, known as the Green Guides, that it launched in December. Concerns over plastics grabbed a lot of attention.

"I think where the rubber hits the road is plastic packaging of all kinds, bags and every kind of film," said Raissa Lerner, a California deputy attorney general. "That's where people are deeply confused, and where marketing labels are taking advantage of that confusion to hit people's feel-good button and basically continue to, directly or indirectly, promote wish cycling.

"Promoting wish cycling takes consumers focus off of the need to reduce plastic production, if we're ever going to get a handle on the plastic pollution problem," she told the hearing.

FTC attorneys at the hearing asked if they should turn the guides into more formal regulations.

One area where the AGs and others pressed the FTC was in the use of the chasing arrows symbol around the resin identification code on plastic packaging.

The EPA, in an April 20 filing to the FTC, called plastics a "significant problem" and said combining the resin code and chasing arrows "does not accurate represent recyclability as many plastics (especially 3-7) do not have end markets and are not financially viable to recycle."

"Consumers generally understand the chasing arrows triangle to represent a universal recycling symbol and interpret it to mean that the product is recyclable, and its use with the resin identification codes influences consumer decisions on how they dispose of plastic products," the EPA said. "The issue is not the resin codes themselves but the implication that all of them can be recycled."

Jennie Romer, the deputy assistant administrator who wrote the EPA comments, testified at the hearing as a member of the public in the open comment segment.

Lerner noted Romer's appearance and urged EPA and FTC to work closely together, saying that "the consumer claims are connected to environmental impact, ultimately."

In their own filing to the FTC, Lerner's boss, California AG Rob Bonta and 15 other AGs from states and the District of Columbia, pointed to polling showing similar consumer confusion.

Technically, the resin ID code can be a simple triangle, but some state laws dating back 30-40 years require that it use a chasing arrows loop.

FTC rules currently say that it's OK to use the resin ID code and chasing arrows together, and that they don't necessarily imply recyclability, if they're used inconspicuously on a package.

But some speakers at the hearing pushed back on that, saying the public regularly misinterprets them as a recycling symbol.

An FTC attorney leading the hearing, Julia Solomon Ensor, asked if the agency should require qualified claims in that case, if that plastic lacks strong recycling end markets.

Patrick Krieger, vice president of sustainability at the Plastics Industry Association, told the hearing that the resin ID code is a valuable tool for recycling companies to identify materials they're processing.

He suggested consumer confusion could be reduced with better recycling language elsewhere on the package, and he said FTC likely has limited power in the face of state laws requiring the chasing arrows and resin code.

"I don't necessarily think that the FTC Green Guides are going to be able to change that in the 29 states where the use of the chasing arrows is actually required," Krieger said. "Let's not make a complicated problem worse. Working on a national standard, working in other policy areas, are where we're going to solve those areas."

But Lerner pointed to a 2021 California law, Senate Bill 343, that will limit recycling claims and chasing arrows as that legislation is implemented over the next few years.

"In California that is going to be the law… to the extent that the chasing arrows is mandated in any form, it's going to require a clear disclaimer," Lerner said.

A nonpartisan analysis of SB 343 by state researchers said only PET and high density polyethylene bottles would likely meet the law's criteria for recycling labeling.

Discussion at the hearing focused on the degree to which consumers are confused by seeing chasing arrows with resin codes on packaging made from plastics 3, 4, 6 and 7 — or vinyl, low density polyethylene, polystyrene and miscellaneous others, respectively — because they have the weakest markets.

Connecticut Assistant Attorney General Kaelah Smith said her state has concerns with the resin identification code.

"RIC codes are particularly problematic," she said. "It can be very challenging for individual states to address greenwashing problems because they have the language baked into the statue.

"That, again, can only increase the consumer confusion because the consumer sees the recycling symbol, or they feel the little chasing arrows, and think, 'Oh, this must be recyclable,' " she said.

Similarly, Anne Germain, chief operating officer with the National Waste and Recycling Association, said the public sees chasing arrows as a clear, universal recycling symbol on metal cans and paper packaging.

When they see the arrows with the resin code, they think the same thing, even if it technically does not indicate recyclability. She urged FTC to require a qualified claim in that case.

"We suggest that if they put a resin ID code in an inconspicuous place, that they should also put a 'this is not recyclable' next to so it's very clear," she said.

Plastics recycling companies are looking at updated Green Guides to help shore up recycling for packaging that has strong end markets, like PET bottles, according to Kate Bailey, the chief policy officer for the Association of Plastic Recyclers.

She referenced the PET bottle recycling rate of just under 30 percent, saying that seven of 10 PET bottles in the U.S. are thrown away.

"We have a long way to go in just making that very recyclable product readily recycled," Bailey said. "That's where the FTC comes in by helping to shore up that that is a very recyclable product."

She said there's record demand now for some recycled plastics.

"Our companies have the capacity today to recycle 50 percent more PET bottles," Bailey said. "We could raise the rate from 28 percent to 42 percent right now if we could get more people to put materials in their bin."

Commenters and panelists sparred over how the agency should treat chemical recycling of plastics in any new rules.

The state AGs seemed to express a preference for traditional mechanical recycling processes.

The states in their formal comments urged FTC to revise the Green Guides to "further clarify that 'recycling' of post-consumer plastic is confined to the mechanical processing of plastic waste into a new product or into a plastic resin."

They said that converting plastic waste into polymers, fuels or other products with chemical recycling should have to prove it is as efficient as mechanical recycling and be "shown to have an actual environmental benefit."

Lerner questioned whether chemical recycling technologies can efficiently process enough waste back into new plastics.

"I think, ultimately, if there's anything new like chemical recycling, or pyrolysis or gasification, the industry would have to substantiate whether that's even recycling," she said.

But the plastics association's Krieger said chemical recycling could play a major role in handling hard-to-recycle plastics and should be considered as recycling in the Green Guides.

"They offer a lot of potential promise for our industry and the ability to recycle plastics that are currently difficult to recycle," he said. "These are an incredibly important part of our industry."

Plastics groups presented polling data showing public support for chemical recycling.

Ultimately, whatever decisions the FTC makes — and given the complexity, the agency announced it was extending its deadline for formal comments on recyclability marketing until June 13 — plastics seems likely to remain at the center of the debate.

Many in the general audience comment portion described their challenges with plastics.

As well, a panelist from the environmental group Just Zero pointed out a new investigation from ABC News that put trackers in 48 plastic bags collected at store drop-offs and found only three made it to recycling processing, with the rest landfilled, incinerated, lost or exported as scrap to Asia.

A local government recycling manager who was a panelist at the hearing, Adam Riedel from Arlington, Va., said residents find plastics recycling more complicated than paper or metal cans.

As an example, he noted people regularly put e-commerce plastic film envelopes in curbside bins, apparently misreading the store drop-off labeling. They later gum up sorting machinery.

"Plastics is where we get 98 percent of the confusion," he said.