dct strikes down California's new recyclability law on vagueness/1A grounds

California League of Food Producers v. Bonta, 2026 WL 2055589, No. 3:26-cv-01675-WQH-BLM (S.D. Cal. Jul. 14, 2026)

Trade associations challenged a California law about recyclability claims; the court found it unconstitutionally vague and also unconstitutional under Central Hudson. Basically, the law provided that using a recycling symbol would be deemed deceptive or misleading “unless the product or packaging is considered recyclable pursuant to statewide recyclability criteria and is of a material type and form that routinely becomes feedstock used in the production of new products or packaging.” Something would be deemed recyclable if it was collected by jurisdictions including least 60 percent of the population of the state and processed by facilities that serve 60 percent of recycling programs statewide. But the standards for “routinely becoming feedstock” and other key terms were too vague, even for an economic regulation; there was no scienter requirement to mitigate its harshness. The state’s own reporting disclaimed comprehensiveness. Defining a consumer good as “recyclable” if it can be “conveniently recycled” in California counties with more than 300,000 people offered no guidance as to what recycling programs satisfy the “conveniently recycled” requirement. Reference to outside guidance like the Basel Convention also wasn’t specific enough to provide guidance.

Reference to the APR Design Guide for plastic packaging “does not correspond to other language in the statute because a product or package design that is ‘detrimental to recycling’ or ‘needs improvement’ may reasonably be understood as precluding recycling of that material”—or not. “Constitutional concerns regarding fair notice and standardless enforcement are heightened here because, under California law, the APR Design Guide provision may be enforced by private individuals and local governmental actors and may result in criminal sanctions.” Plus, the Guide described itself as “dynamic” and subject to change as “packaging technologies evolve.” “Manufacturers are left without statutory guidance not only as to whether their compliance will be measured at the time of design, manufacture, or sale of their packaging, but also without reliable information regarding which version of the APR Design Guide will apply. The record indicates that the APR Design Guide has been repeatedly revised after the enactment of [the new law].” Even if the date of design was key, there was vagueness in determining when a package was “designed.”

Similarly, requirements that “plastic products and non-plastic products and packaging” must be “designed to ensure recyclability and [must] not include any components, inks, adhesives, or labels that prevent the recyclability of the product or packaging” were too vague. Determining what “prevented” recyclability requires consideration of not only recycling technologies, but also whether it is “economically feasible” for recycling facilities to ultimately process those materials into feedstock. The court severed all the challenged provisions.

Unsurprisingly, then, the Central Hudson challenge also succeeded. The law directly regulated commercial speech: “environmental marketing claim[s], whether explicit or implied” related to products and packaging.

The legislature couldn’t just declare use of recyclability claims inconsistent with the government’s definition of recyclability to be inherently misleading. [Now do gas mileage calculations.] In the context of recyclability, where there were a lot of variables about local practices, the term was only potentially misleading, not inherently misleading.

California identified two primary government interests: reducing consumer confusion and improving recycling rates. These were substantial.

Did the regulation directly advance those interests? “To satisfy its burden, California must provide evidence establishing that the harms it recites are real and that its speech restriction will significantly alleviate those harms.” However, this does not “require that ‘empirical data come ... accompanied by a surfeit of background information ... We have permitted litigants to justify speech restrictions by reference to studies and anecdotes pertaining to different locales altogether, or even, in a case applying strict scrutiny, to justify restrictions based solely on history, consensus, and ‘simple common sense.’ ”

Under Ninth Circuit precedent,

[A] state can invoke ‘common sense’ only if the connection between the law restricting speech and the government goal is so direct and obvious that offering evidence would seem almost gratuitous. But as the government’s justifications for a regulation become more attenuated, bare appeals to common sense quickly veer into impermissible speculation. In such cases, the state needs to provide evidence to substantiate that its law will meaningfully further its stated objectives.

Plaintiffs argued that uncertainty would chill recycling claims, contrary to the state’s objective. California responded that it was trying to address a different problem: “cross-contamination in recycling streams, which makes recycling less effective.” This process “weakens the recyclables market” by increasing the cost to reclaim materials and reducing the value of contaminated “plastic lots.” But the record didn’t support the government’s position that enforcement would reduce the total amount of material that is deposited into landfills.

The evidence showed that “California faces serious difficulties in efficiently recycling consumer products and packaging, at least with respect to those made of plastic.” And there was evidence that “consumers’ attempts to recycle materials, especially plastic bags, are detrimental to the recycling process because—as a matter of practice—recycling facilities are unable to process these materials and turn them into feedstock that can become new products and packaging.” Thus, “elimination of contaminated materials from recycling streams would benefit the operations of recycling facilities and result in a greater portion of their collected materials being turned into feedstock. But the evidence in the record indicates that … this benefit to recycling facilities would come at the cost of increasing the amount of materials placed in landfills.” Plaintiffs submitted declarations from members stating that the law would require them to omit truthful statements regarding recyclability from their products and packaging, which will result in materials that would otherwise be recycled going to a landfill. California conceded that this would be a short-term effect, but argued that manufacturers would respond by redesigning; this was speculative given manufacturers’ declarations that instead recycling claims would be omitted entirely. “While these declarations are self-serving, Defendant offers no evidence to counter them.”

What about consumer confusion? Plaintiffs argued that consumers would be deprived of “accurate, qualified recycling instructions” for products and packaging that are capable of being recycled. True, there was evidence that consumers lack adequate information about which products to recycle. And the court assumed that “consumers read and consider recyclability claims on products and packaging during their purchasing decisions and at the time that they discard the products and packaging.” But the record was conflicting on whether the law would improve accuracy. Presumably, standardizing the requirements would “facilitate California consumers’ ability to trust that, if a product or package is labelled as recyclable, it will be recycled and turned into feedstock if they place it in the appropriate bin.” And information about recyclability is presumably difficult for consumers to obtain without relying on manufacturers’ representations. But there was also evidence that manufacturers would forgo some recyclability claims, leaving consumers with less information, including “truthful and genuinely helpful information, such as a listing of which areas accept the product or package for recycling and which do not.” [Do such packages with lists actually exist?] And the law “would still leave consumers in dark about whether a package or product marked as recyclable is genuinely recyclable in the consumers’ area—i.e., whether the consumer is in the portion of the state (which can be up to 40%) which does not accept the material for recycling.” Ultimately, the consumer understanding claims were too speculative to support the law.

It followed that narrow tailoring was also not present.  The law failed to leave “breathing room for manufacturers to provide qualified information about their products and packaging,” such as “[n]ot recyclable in most areas; check locally” or a QR code on the packaging with “details regarding the product’s recyclability.” This meant that the provisions of the law that survived vagueness did not survive Central Hudson.