- with Inhouse Counsel
Producers and users of plastic and paper packaging sold into California had been preparing for a compliance deadline of October 4, 2026, by which they had to remove any chasing arrows or recyclable statements from packages, where they could not show at least 60% of the state population had access to facilities that both accepted the products for recycling and actually recycled them (the so-called “60/60” rule). In a decision of July 15, 2026, the United States District Court for the Southern District of California preliminarily enjoined enforcement of this requirement. This will allow producers of covered products to keep using the chasing arrows and making recyclable claims until further notice.
In March 2026, a coalition of industry trade associations had challenged SB 343, alleging that the law unconstitutionally restricted commercial speech in violation of the First Amendment and was also void for vagueness. The court found the plaintiffs were likely to succeed on both arguments, enjoining enforcement of the law until the trial, after which, the court could permanently enjoin the law or allow it to remain in force.
The law purported to follow the Basel Convention, using a theory that had been echoed in several consumer class action complaints, requiring covered producers to do more than show that a covered product “can be” recycled. These cases also allege that the advertiser must also show that the product actually “is” recycled by at least 60% of available facilities. The latter showing depends on markets for recycled materials. The court reasoned that, many companies would try to comply with SB 343 by removing otherwise truthful recyclability claims, resulting in more recyclable material being sent to landfills: “Violations, which may be prosecuted as misdemeanors punishable by up to six months imprisonment, may be established despite the manufacturer’s lack of knowledge or reasonable belief regarding the recyclability of its product or package.” The state's efforts to restrict commercial speech in this manner thus was unconstitutionally vague and also failed intermediate scrutiny under the famous Central Hudson test.
The state's Material Characterization Study, released with some fanfare in April 2025, also came in for criticism by the court, which held In its decision that the study failed to determine whether product would be legally recyclable, failed to address Basel Convention compliance, and provided no guidance to producers in meeting SB 343's requirements.
The preliminary injunction prohibits the state from enforcing SB 343 until further notice. Our supposition is that the state will appeal. However, it seems certain that the original compliance date of October 4 will not stick.
Also, this decision could have important ramifications for other state extended producer responsibility ("EPR") laws, which have been enacted in seven states and are proliferating. For example, litigation against Oregon's EPR law is already underway and its enforcement has been preliminarily enjoined as to certain plaintiffs. A five-day trial took place in Portland on July 13, 2026, with a ruling expected later this year.
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