Is the recycling symbol free speech? A judge just ruled it could be.

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. 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 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. To support our nonprofit environmental journalism, please consider disabling your ad-blocker to allow ads on Grist. Here's How “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.