California just signed the country’s toughest recycling labeling and marketing bill

California is focusing its attention on increasing sustainable marketing, including recycling-centric claims through a new law that mandates the use of recycling labels – including the “arrow hunt” motif. According to the bill, which was enacted earlier this month by California Governor Gavin Newsom, unless a product or packaging is considered recyclable “in accordance with the criteria for world-wide recyclability. ‘Condition and whether it is of a type and form of material which regularly becomes raw materials used in the production of new products or packaging, “the use” of a chasing arrows symbol, among d ‘other symbols, statements [indicating the product is recyclable directly on the product], or instructions ”, will be considered misleading or misleading.

The new law – which amends sections 17580 and 17580.5 of the California Business and Professions Cod and calls on the state Department of Resources Recycling and Recovery to publish standards by January 1, 2024 regarding the types of materials / shapes considered recyclable – applies to all consumer goods and product packaging, unless otherwise specified. And it’s widely characterized as the country’s strictest standard for when items may (and may not) display the recycling symbol and any other representation advising consumers that a product or its packaging may be recycled.

The impact of the new recycling marketing law is limited in terms of applicability – at least directly – to products sold in the state of California. However, it is likely to have a significant effect on brands if only for the sheer size of the consumer goods market in California. Beyond that, experts expect the law to likely expand on a larger scale. In 2024, when the law goes into effect, “California’s new, stricter standard is likely to become the rule to follow when it comes to recyclability,” says Frankfurt Kurnit Klein & Selz lawyer Jordyn Eisenpress. And while the Federal Trade Commission ‘s Green Guides “provide federal level advice on environmental marketing, state environmental marketing laws offer a patchwork of restrictions, resulting in (as has been the case with legislation on privacy) in the largest, most restrictive states. set the tone for the entire space.

The California law is the first of its kind in the United States, although other states are in fact turning to recycling. Maine and Oregon have passed laws that require companies to foot the bill for the cost of recycling their packaging, with the Oregon legislature planning to establish a task force to tackle potentially “deceptive or” issues. confusing ”. [recycling] complaints ”related to recycling. At the same time, a bill relating to “false claims regarding recyclability and labeling of plastic containers” is pending in the New York Senate.

Meanwhile, the UK’s Competition & Markets Authority recently released its much-anticipated Green Claims Code, the competition and consumer protection regulator providing advice to companies making environmental claims. The new Code ”- which aims to“ help businesses understand and comply with their existing obligations under consumer protection law when making environmental claims ”- applies to all businesses everywhere. market sectors and extends to claims made in advertisements, product labeling and packaging or other accompanying information, including product names, and presumably, any logos or graphics that are used in relation to business goods / services.

The rise of “green” brands

The wave of activity comes as businesses continue to capitalize on growing consumer sentiment about the need to consume more consciously through often comprehensive sustainability campaigns and without a shortage of eco-buzzwords. Unsurprisingly, the widespread adoption of sustainability-focused marketing messages by brands at all levels – from fast and high fashion brands to beauty brands and consumer packaged goods companies – has led to an increase in misleading and / or unfounded claims, and a multitude of confused consumers.

It will be interesting to see how far the impending crackdown on recycling – and other ‘green’ symbols and advertising language – goes – as companies have been working overtime to address growing consumer climate concerns. The result goes beyond dedicated marketing campaigns and specific “green” products (such as collections of recycled capsules), and also comes in the form of a growing number of “green” brand registrations around the world. . The European Union Intellectual Property Office (“EUIPO”), for example, disclosed in a report last month that more than 2 million applications to register what she calls the “green mark” have been filed since 1996, with the volume of marks mentioning “green terms”, such as recycling, “increasing significantly at the both in absolute numbers and as a proportion of all EU trademark filings.

“The main finding of the study,” according to EUIPO, is that “environmental considerations are becoming increasingly important for trademark owners who file trademark applications and for consumers who purchase the products and services that apply them. result “.

Reflecting on EUIPO’s findings, Pinsent Masons Legal Director Désirée Fields said: “With climate change and environmental issues high on the political, business and debate agendas public, consumers increasingly seek to purchase products that are considered environmentally friendly and sustainable, [and] brands can play an important role in helping consumers identify that they are buying a product that meets these characteristics.

In addition to “certification marks, collective marks or warranty marks, which indicate to consumers that a product conforms to certain standards or characteristics”, Fields notes that companies have developed a habit of adopting marks which not only indicate to consumers that a product or service comes from a particular source, but that they are the result of “a business which, usually through heavy investment in marketing and consumer education by the brand owner, has come to be recognized as “green brands”. ”

In this vein, brands that suggest elements of sustainability, such as recycling, are also on the rise. Prada, for example, has filed claims this year for a brand which consists of the word Re-Prada as well as a stylized interpretation of its triangular logo to be used as part of its drive to use recycled nylon – or econyl, a proprietary material made from recycled industrial nylon waste such as netting. fishing and rugs – in its accessories offers. Meanwhile, Louis Vuitton also filed for registration with the United States Patent and Trademark Office for a trademark consisting of two twisted arrows that distinguish the letters “LV” for use on “upcycled” sneakers.

Brands like these are interesting in that they may not use the recycle symbol itself. However, they implicitly make sustainability-focused claims because of their appearance and therefore may be subject to things like the FTC’s green guides, for example, which apply to ‘environmental claims in labeling, advertising, promotional material and all other forms of marketing in any medium, whether affirmed directly or by implication, by words, symbols, logos, representations, product brand names or any other means .

“Investing and integrating environmental protection and sustainability into a company’s brand [growth and] Protection strategy can add value, ”said Fields, given that“ there is so much attention on these important issues globally ”. While this remains true in light of the growing crackdown by regulators on deceptive sustainability marketing, including claims of “overall environmental benefit” – and the willingness of consumers and independent watchdogs to call brands and / or take legal action in some cases, brands would be wise to consider the balance between the benefits of such branding and the potential ramifications.

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